Protective Provisions. (a) The Company shall not sell or issue any New Securities without first obtaining the approval (by vote or written consent, as provided by applicable Laws or the Articles) of the Shareholders holding at least 66.7% of the then total issued and outstanding Ordinary Shares held by all Shareholders. The Company shall not sell or issue any New Securities at a purchase price that has a pre-money valuation of the Company of less than US$6 billion without first obtaining the approval (by vote or written consent, as provided by applicable Laws or the Articles) of the Shareholders holding at least 90% of the then total issued and outstanding Ordinary Shares held by all Shareholders. (b) Without prejudice to Section 10.2(a) above, the Company shall not, and shall not permit any other applicable Group Company to, except as expressly permitted under this Agreement or in connection with any put right of a Shareholder as set forth in the applicable Subscription Agreements, carry out any of the following actions involving itself or any of its Subsidiaries as applicable without first obtaining the approval (by vote or written consent, as provided by applicable Laws or the Articles) of the Shareholders holding at least 66.7% of the then total issued and outstanding Ordinary Shares held by all Shareholders: (i) altering or changing the rights, or privileges of the Ordinary Shares or creating (by reclassification or otherwise) any new class or series of shares having rights, preferences or privileges senior to or on a parity with the Ordinary Shares; (ii) reclassifying any outstanding Ordinary Shares into shares having rights, preferences or privileges with respect to dividends or assets senior to or on a parity with the Ordinary Shares; (iii) declaring or paying any dividend or distribution or otherwise redeeming or repurchasing any issued and outstanding shares of the Company; (iv) making any acquisition, sale of control or assets, merger, consolidation, joint venture or partnership arrangements exceeding the materiality threshold established by the Board from time to time, except pursuant to the exercise of the Drag-Along Right; (v) effecting an increase or reduction of the authorized share capital, split-off, spin-off, dissolution, liquidation, winding-up or bankruptcy of the Company or any material Subsidiary thereof (for the avoidance of doubt, issuance of any shares under the exceptional proviso of the definition of “New Securities” shall not be subject to such approvals); (vi) selling, mortgaging, pledging, leasing, transferring, incurring a lien on or otherwise disposing of substantially all of its assets or any of the assets which are outside the ordinary course of business of the Company and exceeding the materiality threshold established by the Board from time to time; (vii) making any material changes to or engaging in any business materially different from the Core Business, or ceasing any material existing business line or activities of the Company; (viii) incurring any material indebtedness or assuming any material financial obligation exceeding the materiality threshold established by the Board from time to time and outside the ordinary course of business of the Company; (ix) making any capital expenditures or investment in any other company exceeding US$400,000,000 or such other materiality threshold established by the Board from time to time; (x) creating any encumbrance over the whole or part of the share capital, undertaking, material property or material assets of the Company or any material Subsidiary thereof, other than as permitted by the annual budget or the business and financial plan approved by the Board; (xi) increasing or decreasing the authorized size of the Board; or (xii) amending or waiving any provision of the Articles in a manner that would alter or change the rights, preferences or privileges of the Ordinary Shares. (c) The Company shall not, and shall not permit any other Group Company to, make any changes to any of the Control Documents including any transfer or assignment of any party’s rights and obligations under any of the Control Documents and any appointment of representatives, specified persons or proxies under the Control Documents, except as contemplated in this Agreement or by the Tencent Transaction Documents, without first obtaining the approval (by vote or written consent, as provided by applicable Laws or the Articles) of the holders of at least 66.7% of the then total issued and outstanding Ordinary Shares of the Company. (d) Without prejudice to Section 10.2(b) above, the Company shall not, and shall not permit any other Group Company to, carry out any of the following actions involving itself or any of its Subsidiaries without first obtaining the prior written approval of Tencent: (i) any merger, consolidation, transfer of shares or other form of restructuring of the Company involving a Restricted Person; (ii) any sale of all or substantially all of the assets of the Group Companies to a Restricted Person; (iii) any issuance of New Securities by the Company to any Restricted Person; (iv) entering into any joint venture or partnership arrangement with a Restricted Person; or (v) engaging in any business other than the Core Business.
Appears in 2 contracts
Sources: Shareholder Agreements, Shareholder Agreements (Tencent Music Entertainment Group)
Protective Provisions. (a) The Company shall not sell or issue any New Securities without first obtaining the approval (by vote or written consent, as provided by applicable Laws or the Articles) of the Shareholders holding at least 66.7% of the then total issued and outstanding Ordinary Shares held by all Shareholders. The Company shall not sell or issue any New Securities at a purchase price that has a pre-money valuation of the Company of less than US$6 billion without first obtaining the approval (by vote or written consent, as provided by applicable Laws or the Articles) of the Shareholders holding at least 90% of the then total issued and outstanding Ordinary Shares held by all Shareholders.
(b) Without prejudice to Section 10.2(a) above, the Company shall not, and shall not permit any other applicable Group Company to, except as expressly permitted under this Agreement or in connection with any put right of a Shareholder as set forth in the applicable Subscription Agreements, carry out take any of the following actions involving itself or any without the prior affirmative written consent of its Subsidiaries as applicable without first obtaining Purchaser or, following the approval Closing, of the holders of the Warrant and holders of at least two-thirds (by vote or written consent, as provided by applicable Laws or the Articles2/3) of the Shareholders holding at least 66.7% of the then total issued and outstanding Ordinary Shares held by all ShareholdersSeries B Shares:
(ia) altering alter, change or changing the rights, or privileges of the Ordinary Shares or creating amend (by reclassification merger or otherwise) any new class or series of shares having rights, preferences or privileges senior to or on a parity with the Ordinary Shares;
(ii) reclassifying any outstanding Ordinary Shares into shares having rights, preferences or privileges with respect to dividends or assets senior to or on a parity with the Ordinary Shares;
(iii) declaring or paying any dividend or distribution or otherwise redeeming or repurchasing any issued and outstanding shares of the Company;
(iv) making any acquisition, sale of control or assets, merger, consolidation, joint venture or partnership arrangements exceeding the materiality threshold established by the Board from time to time, except pursuant to the exercise of the Drag-Along Right;
(v) effecting an increase or reduction of the authorized share capital, split-off, spin-off, dissolution, liquidation, winding-up or bankruptcy of the Company or any material Subsidiary thereof (for the avoidance of doubt, issuance of any shares under the exceptional proviso of the definition of “New Securities” shall not be subject to such approvals);
(vi) selling, mortgaging, pledging, leasing, transferring, incurring a lien on or otherwise disposing of substantially all of its assets or any of the assets which are outside the ordinary course of business of the Company and exceeding the materiality threshold established by the Board from time to time;
(vii) making any material changes to or engaging in any business materially different from the Core Business, or ceasing any material existing business line or activities of the Company;
(viii) incurring any material indebtedness or assuming any material financial obligation exceeding the materiality threshold established by the Board from time to time and outside the ordinary course of business of the Company;
(ix) making any capital expenditures or investment in any other company exceeding US$400,000,000 or such other materiality threshold established by the Board from time to time;
(x) creating any encumbrance over the whole or part of the share capital, undertaking, material property or material assets of the Company or any material Subsidiary thereof, other than as permitted by the annual budget or the business and financial plan approved by the Board;
(xi) increasing or decreasing the authorized size of the Board; or
(xii) amending or waiving any provision of the Articles in a manner that would alter or change the rights, preferences or privileges of the Ordinary Shares.Series B Preferred Stock;
(b) alter, change or amend any of the terms of the Warrant;
(c) The Company shall notother than as provided in Section 5.11(c) hereof, and shall not permit amend, restate, alter, modify or repeal (by merger or otherwise) its Articles of Incorporation or Bylaws, including, without limitation, amending, restating, modifying or repealing (by merger or otherwise) (i) any other Group Company to, make certificate of designation or preferences (as in effect from time to time) relating to any changes to series of Preferred Stock or (ii) any of the Control Documents including any transfer or assignment rights, preferences and privileges of any party’s rights and obligations under any other class of the Control Documents and any appointment of representatives, specified persons or proxies under the Control Documents, except as contemplated in this Agreement or by the Tencent Transaction Documents, without first obtaining the approval (by vote or written consent, as provided by applicable Laws Capital Stock or the Articles) terms or provisions of the holders of at least 66.7% of the then total issued and outstanding Ordinary Shares of the Company.any option or Convertible Security;
(d) Without prejudice to Section 10.2(b(i) abovecreate, authorize or issue Senior Securities, Parity Securities, Supervoting Securities or shares of any such class or series; (ii) create, authorize or issue any securities (including Convertible Securities) convertible into, or exercisable, redeemable or exchangeable for, shares of Senior Securities, Parity Securities or Supervoting Securities; (iii) increase or decrease the Company shall notauthorized number of shares of Series B Preferred Stock; or (iv) increase or decrease the authorized number of shares of any class or series of Senior Securities, and shall not permit Parity Securities, Supervoting Securities or shares of any other Group Company to, carry out any of the following actions involving itself such class or any of its Subsidiaries without first obtaining the prior written approval of Tencent:series;
(i) initiate or suffer to exist any mergerLiquidation Event with respect to the Company, consolidation, transfer of shares or other form of restructuring of the Company involving a Restricted Person;
(ii) enter into any sale merger or consolidation with any other Person that results in the holders of all the Company's Capital Stock immediately prior to such transaction owning less than fifty percent (50%) of the voting power of the successor entity's Capital Stock after such transaction or substantially all (iii) otherwise discontinue or dispose of more than ten percent (10%) of the assets of the Group Companies to business of the Company, taken as a Restricted Personwhole;
(iiif) initiate or suffer to exist any issuance recapitalization of New Securities the Company, or reclassify any authorized Capital Stock of the Company into any other class or series of Capital Stock of the Company;
(g) redeem any shares of Capital Stock;
(h) acquire, in one or a series of transactions, any equity ownership interest, by way of merger or otherwise, in any Person, or any asset or assets of any Person, where the aggregate consideration payable in connection with such acquisition (including, without limitation, cash consideration, the fair market value of any securities and the net present value of any deferred consideration) is at least $1,000,000, or (ii) make any capital expenditures in excess of $500,000 individually or $1,000,000 for any fiscal year;
(i) change the number of directors of the Company to any Restricted Person;
(iv) entering into any joint venture or partnership arrangement with a Restricted Person; or
(v) engaging in any business number other than seven (7) or the Core Business.manner in which the directors are selected, except as set forth in Section 5.11(c) hereof; (j) make any material change in the nature of its business as conducted on the Closing Date, or fail to conduct its business in the ordinary course consistent with past practice;
Appears in 2 contracts
Sources: Securities Purchase Agreement (Fieldworks Inc), Securities Purchase Agreement (Fieldworks Inc)
Protective Provisions. (a) The Company shall not sell or issue any New Securities without first obtaining the approval (by vote or written consent, as provided by applicable Laws or the Articles) of the Shareholders holding at least 66.7% of the then total issued and outstanding Ordinary Shares held by all Shareholders. The Company shall not sell or issue any New Securities at a purchase price that has a pre-money valuation of the Company of less than US$6 billion without first obtaining the approval (by vote or written consent, as provided by applicable Laws or the Articles) of the Shareholders holding at least 90% of the then total issued and outstanding Ordinary Shares held by all Shareholders.
(b) Without prejudice to Section 10.2(a) above, the Company shall not, and shall not permit any other applicable Group Company to, except as expressly permitted under this Agreement or in connection with any put right of a Shareholder as set forth in the applicable Subscription Agreements, carry out any of the following actions involving itself or any of its Subsidiaries as applicable without first obtaining the approval (by vote or written consent, as provided by applicable Laws or the Articles) of the Shareholders holding at least 66.7% of the then total issued and outstanding Ordinary Shares held by all Shareholders:
(i) altering or changing the rights, or privileges of the Ordinary Shares or creating (by reclassification or otherwise) any new class or series of shares having rights, preferences or privileges senior to or on a parity with the Ordinary Shares;
(ii) reclassifying any outstanding Ordinary Shares into shares having rights, preferences or privileges with respect to dividends or assets senior to or on a parity with the Ordinary Shares;
(iii) declaring or paying any dividend or distribution or otherwise redeeming or repurchasing any issued and outstanding shares of the Company;
(iv) making any acquisition, sale of control or assets, merger, consolidation, joint venture or partnership arrangements exceeding the materiality threshold established by the Board from time to time, except pursuant to the exercise of the Drag-Along Right;
(v) effecting an increase or reduction of the authorized share capital, split-off, spin-off, dissolution, liquidation, winding-up or bankruptcy of the Company or any material Subsidiary thereof (for the avoidance of doubt, issuance of any shares under the exceptional proviso of the definition of “New Securities” shall not be subject to such approvals);
(vi) selling, mortgaging, pledging, leasing, transferring, incurring a lien on or otherwise disposing of substantially all of its assets or any of the assets which are outside the ordinary course of business of the Company and exceeding the materiality threshold established by the Board from time to time;
(vii) making any material changes to or engaging in any business materially different from the Core Business, or ceasing any material existing business line or activities of the Company;
(viii) incurring any material indebtedness or assuming any material financial obligation exceeding the materiality threshold established by the Board from time to time and outside the ordinary course of business of the Company;
(ix) making any capital expenditures or investment in any other company exceeding US$400,000,000 or such other materiality threshold established by the Board from time to time;
(x) creating any encumbrance over the whole or part of the share capital, undertaking, material property or material assets of the Company or any material Subsidiary thereof, other than as permitted by the annual budget or the business and financial plan approved by the Board;
(xi) increasing or decreasing the authorized size of the Board; or
(xii) amending or waiving any provision of the Articles in a manner that would alter or change the rights, preferences or privileges of the Ordinary Shares.
(c) The Company shall not, and shall not permit any other Group Company to, make any changes to any of the Control Documents including any transfer or assignment of any party’s rights and obligations under any of the Control Documents and any appointment of representatives, specified persons or proxies under the Control Documents, except as contemplated in this Agreement or by the Tencent Transaction Documents, without first obtaining the approval (by vote or written consent, as provided by applicable Laws or the Articles) of the holders of at least 66.7% of the then total issued and outstanding Ordinary Shares of the Company.
(d) Without prejudice to Section 10.2(b) above, the Company shall not, and shall not permit any other Group Company to, carry out any of the following actions involving itself or any of its Subsidiaries without first obtaining the prior written approval of Tencent:
(i) any merger, consolidation, transfer of shares or other form of restructuring of the Company involving a Restricted Person;
(ii) any sale of all or substantially all of the assets of the Group Companies to a Restricted Person;
; (iii) any issuance of New Securities by the Company to any Restricted Person;
(iv) entering into any joint venture or partnership arrangement with a Restricted Person; or
(v) engaging in any business other than the Core Business.
Appears in 2 contracts
Sources: Shareholder Agreement (Tencent Music Entertainment Group), Shareholder Agreements
Protective Provisions. (a) The So long as any shares of Series A Preferred Stock are outstanding, the Company shall not sell or issue not, and the Company and the Major Shareholder shall take all actions within their power to ensure that, no Subsidiary shall take any New Securities of the actions set forth below (the “Special Voting Transactions”) without first obtaining the approval (by vote or written consent, as provided by applicable Laws or the Articles) of the Shareholders holding at least 66.7% of the then total issued and outstanding Ordinary Shares held by all Shareholders. The Company shall not sell or issue any New Securities at a purchase price that has a pre-money valuation of the Company of less than US$6 billion without first obtaining the approval (by vote or written consent, as provided by applicable Laws or the Articles) of the Shareholders holding at least 90% of the then total issued and outstanding Ordinary Shares held by all Shareholders.
(b) Without prejudice to Section 10.2(a) above, the Company shall not, and shall not permit any other applicable Group Company to, except as expressly permitted under this Agreement or in connection with any put right of a Shareholder as set forth in the applicable Subscription Agreements, carry out any of the following actions involving itself or any of its Subsidiaries as applicable without first obtaining the approval (by vote or written consent, as provided by applicable Laws or the Articles) of the Shareholders holding at least 66.7% of the then total issued and outstanding Ordinary Shares held by all Shareholders:
(i) altering or changing the rights, or privileges of the Ordinary Shares or creating (by reclassification or otherwise) any new class or series of shares having rights, preferences or privileges senior to or on a parity with the Ordinary Shares;
(ii) reclassifying any outstanding Ordinary Shares into shares having rights, preferences or privileges with respect to dividends or assets senior to or on a parity with the Ordinary Shares;
(iii) declaring or paying any dividend or distribution or otherwise redeeming or repurchasing any issued and outstanding shares of the Company;
(iv) making any acquisition, sale of control or assets, merger, consolidation, joint venture or partnership arrangements exceeding the materiality threshold established by the Board from time to time, except pursuant to the exercise of the Drag-Along Right;
(v) effecting an increase or reduction of the authorized share capital, split-off, spin-off, dissolution, liquidation, winding-up or bankruptcy of the Company or any material Subsidiary thereof (for the avoidance of doubt, issuance of any shares under the exceptional proviso of the definition of “New Securities” shall not be subject to such approvals);
(vi) selling, mortgaging, pledging, leasing, transferring, incurring a lien on or otherwise disposing of substantially all of its assets or any of the assets which are outside the ordinary course of business of the Company and exceeding the materiality threshold established by the Board from time to time;
(vii) making any material changes to or engaging in any business materially different from the Core Business, or ceasing any material existing business line or activities of the Company;
(viii) incurring any material indebtedness or assuming any material financial obligation exceeding the materiality threshold established by the Board from time to time and outside the ordinary course of business of the Company;
(ix) making any capital expenditures or investment in any other company exceeding US$400,000,000 or such other materiality threshold established by the Board from time to time;
(x) creating any encumbrance over the whole or part of the share capital, undertaking, material property or material assets of the Company or any material Subsidiary thereof, other than as permitted by the annual budget or the business and financial plan approved by the Board;
(xi) increasing or decreasing the authorized size of the Board; or
(xii) amending or waiving any provision of the Articles in a manner that would alter or change the rights, preferences or privileges of the Ordinary Shares.
(c) The Company shall not, and shall not permit any other Group Company to, make any changes to any of the Control Documents including any transfer or assignment of any party’s rights and obligations under any of the Control Documents and any appointment of representatives, specified persons or proxies under the Control Documents, except as contemplated in this Agreement or by the Tencent Transaction Documents, without first obtaining the approval (by vote or written consent, as provided by applicable Laws or the Articleslaw) of the holders of at least 66.7a 66 2/3% majority of the then outstanding shares of Series A Preferred Stock, voting as a separate class, it being understood that in the event of any conflict in the Special Voting Transactions set forth in the Certificate of Designation and this Agreement, this Agreement shall prevail:
(a) Amendment of any certificate of incorporation, certificate designation or by-laws or other constitutional documents of any Company Entity that adversely affect the Series A Preferred Stock;
(b) Issuance of any securities and reclassification of any outstanding securities, other than (i) the issuance and sale of shares of Common Stock in a Qualified IPO, or (ii) the issuance and sale of securities to the executives and employees of the Company pursuant to an option or stock plan approved by the Board of Directors, provided that shares reserved to be issued under such plan do not exceed 10% of the then total issued and outstanding Ordinary Shares shares of the Company.Company immediately following the Closing;
(c) Any merger or consolidation of any Company Entity with one or more other corporations in which the shareholders of such Company Entity immediately after such merger or consolidation hold stock representing less than a majority of the voting power of the outstanding stock of the surviving corporation;
(d) Without prejudice The liquidation or dissolution of any Company Entity and any termination or material modification of any Company Entity’s Subsidiaries;
(e) Acquisitions, divestments or disposals where the aggregate consideration, in one transaction or a series of related transactions, exceeds $5,000,000;
(f) Any material change to Section 10.2(bthe nature of business and strategic direction of any Company Entity;
(g) above, Designating any Company Entity other than the Company shall not, and shall not permit to be the listing entity for the Qualified IPO;
(h) Incurrence of any other Group Company to, carry out capital expenditures for any of the following actions involving itself or any of its Subsidiaries without first obtaining the prior written approval of Tencent:project which exceeds $5,000,000;
(i) Incurrence of any merger, consolidation, transfer of shares or other form of restructuring of the Company involving a Restricted Personnew indebtedness which exceeds $3,800,000;
(iij) Entering any sale new related-party transactions or a series of all or substantially all of the assets of the Group Companies to a Restricted Person;related-party transactions within any 12-month period, contracts and arrangements which exceed $1,000,000 million in consideration; and
(iiik) Any payments outside the ordinary course of business and any issuance payment of New Securities by the Company to any Restricted Person;
(iv) entering into any joint venture or partnership arrangement with a Restricted Person; or
(v) engaging in any business other than the Core Businessdividends.
Appears in 2 contracts
Sources: Investors’ Rights Agreement (DBS Nominees (Private) LTD), Investors’ Rights Agreement (JINHAO MOTOR Co)
Protective Provisions. Until fewer than 1,000,000 shares of Convertible Preferred Stock are outstanding (a) The Company shall not sell or issue any New Securities without first obtaining as adjusted for stock splits, stock dividends and the approval (by vote or written consent, as provided by applicable Laws or the Articles) of the Shareholders holding at least 66.7% of the then total issued and outstanding Ordinary Shares held by all Shareholders. The Company shall not sell or issue any New Securities at a purchase price that has a pre-money valuation of the Company of less than US$6 billion without first obtaining the approval (by vote or written consent, as provided by applicable Laws or the Articles) of the Shareholders holding at least 90% of the then total issued and outstanding Ordinary Shares held by all Shareholders.
(b) Without prejudice to Section 10.2(a) abovelike), the Company shall not, and shall not permit any other applicable Group Company to, except as expressly permitted under this Agreement or in connection with any put right of a Shareholder as set forth in without the applicable Subscription Agreements, carry out any approval of the following actions involving itself or any Board of its Subsidiaries as applicable without first obtaining Directors and the approval (by affirmative vote or written consent, as provided by applicable Laws or the Articles) consent of the Shareholders holding at least 66.7% holders of a majority of the then total issued and outstanding Ordinary Shares held by all Shareholders:
shares of Convertible Preferred Stock: (i) altering authorize or changing issue -------------------------------------------------------------------------------- EXECUTION VERSION (including, without limitation, by way of recapitalization), or obligate itself to authorize or issue, any equity security of the Corporation, or any other security exercisable for or convertible into an equity security of the Corporation, that has redemption rights or that is senior to or on parity with the Convertible Preferred Stock as to dividend rights, voting rights, liquidation preferences or privileges of the Ordinary Shares or creating (by reclassification or otherwise) any new class or series of shares having other rights, preferences or privileges senior to or on a parity with the Ordinary Shares;
privileges; (ii) reclassifying any outstanding Ordinary Shares into increase or decrease (other than by conversion) the total number of authorized shares having rights, preferences of Convertible Preferred Stock or privileges with respect to dividends or assets senior to or on a parity with the Ordinary Shares;
Common Stock; (iii) declaring or paying effect any dividend or distribution or otherwise redeeming or repurchasing any issued and outstanding shares of the Company;
(iv) making any acquisitionsale, sale of control or assetslease, mergerassignment, consolidation, joint venture or partnership arrangements exceeding the materiality threshold established by the Board from time to time, except pursuant to the exercise of the Drag-Along Right;
(v) effecting an increase or reduction of the authorized share capital, split-off, spin-off, dissolution, liquidation, winding-up or bankruptcy of the Company or any material Subsidiary thereof (for the avoidance of doubt, issuance of any shares under the exceptional proviso of the definition of “New Securities” shall not be subject to such approvals);
(vi) selling, mortgaging, pledging, leasing, transferring, incurring a lien on or otherwise disposing of substantially all of its assets or any of the assets which are outside the ordinary course of business of the Company and exceeding the materiality threshold established by the Board from time to time;
(vii) making any material changes to or engaging in any business materially different from the Core Business, or ceasing any material existing business line or activities of the Company;
(viii) incurring any material indebtedness or assuming any material financial obligation exceeding the materiality threshold established by the Board from time to time and outside the ordinary course of business of the Company;
(ix) making any capital expenditures or investment in any other company exceeding US$400,000,000 or such other materiality threshold established by the Board from time to time;
(x) creating any encumbrance over the whole or part of the share capital, undertaking, material property or material assets of the Company or any material Subsidiary thereof, other than as permitted by the annual budget or the business and financial plan approved by the Board;
(xi) increasing or decreasing the authorized size of the Board; or
(xii) amending or waiving any provision of the Articles in a manner that would alter or change the rights, preferences or privileges of the Ordinary Shares.
(c) The Company shall not, and shall not permit any other Group Company to, make any changes to any of the Control Documents including any transfer or assignment of any party’s rights and obligations under any of the Control Documents and any appointment of representatives, specified persons other conveyance or proxies under the Control Documents, except as contemplated in this Agreement or by the Tencent Transaction Documents, without first obtaining the approval (by vote or written consent, as provided by applicable Laws or the Articles) of the holders of at least 66.7% of the then total issued and outstanding Ordinary Shares of the Company.
(d) Without prejudice to Section 10.2(b) above, the Company shall not, and shall not permit any other Group Company to, carry out any of the following actions involving itself or any of its Subsidiaries without first obtaining the prior written approval of Tencent:
(i) any merger, consolidation, transfer of shares or other form of restructuring of the Company involving a Restricted Person;
(ii) any sale encumbrance of all or substantially all of the assets of the Group Companies to Corporation or any of its subsidiaries in one or more related transactions, or any consolidation or merger resulting in a Restricted Person;
(iii) change in control of the Company, or any issuance reclassification, recapitalization or other change of New Securities by any capital stock of the Company to any Restricted Person;
Corporation; (iv) entering into any joint venture or partnership arrangement with a Restricted Personchange the authorized number of directors of the Corporation; or
(v) engaging in amend or repeal the Certificate (including by way of any business Certificate of Designation) or the Corporation's Bylaws; (vi) redeem, purchase or otherwise acquire (or pay into or set aside for a sinking fund for such purpose) any of the Common Stock or common stock equivalents; provided, however, that this restriction shall not apply to the repurchase of up to a maximum of $100,000 of Common Stock per year from employees, officers, directors, consultants, advisors or other than persons performing services for the Core BusinessCorporation, pursuant to agreements under which the Corporation has the option to repurchase such shares at cost upon the occurrence of certain events, such as the termination of employment; (vii) effect the liquidation, dissolution or winding up of the Corporation; or (viii) agree, promise, commit or undertake to do any of the foregoing.
Appears in 2 contracts
Sources: Recapitalization Agreement (Northwest Biotherapeutics Inc), Recapitalization Agreement (Toucan Capital Fund II, LP)
Protective Provisions. (a) The parties hereto agree that the Company and its Subsidiaries shall not sell have the right to terminate their intellectual property and license, sub-license or issue contribute their intellectual property to third parties other than the Fortress Shareholders (any New Securities without first obtaining such transaction, an “IP Transaction”) in the approval (by vote ordinary course of business pursuant to any research and development, collaboration, consortium, joint development, distribution, service, joint marketing, co-branding or written consent, as provided by applicable Laws co-distribution agreement or other similar agreements or arrangements entered into in the Articles) ordinary course of business and in a manner consistent with market practice for the industry of the Company; provided that, until such time as the Fortress Shareholders holding at least 66.7own in the aggregate less than 10% of the then total issued and outstanding Ordinary Shares held (including Ordinary Shares underlying American Depositary Shares) for more than [***], any Dartmouth IP Transaction shall be subject to approval by all Shareholders. The Company shall not sell or issue any New Securities at a purchase price that has a pre-money valuation the Board of Directors, including the Company vote of less than US$6 billion without first obtaining the approval (by vote or written consent, as provided by applicable Laws or the Articles) of the Shareholders holding at least 90% of the then total issued and outstanding Ordinary Shares held by all Shareholdersone Fortress Designee.
(b) Without prejudice to Section 10.2(a) above, Until such time as the Company shall not, and shall not permit any other applicable Group Company to, except as expressly permitted under this Agreement or in connection with any put right of a Shareholder as set forth Fortress Shareholders own in the applicable Subscription Agreements, carry out any of the following actions involving itself or any of its Subsidiaries as applicable without first obtaining the approval (by vote or written consent, as provided by applicable Laws or the Articles) of the Shareholders holding at least 66.7aggregate less than 10% of the then total issued and outstanding Ordinary Shares held by all Shareholders:
(including Ordinary Shares underlying American Depositary Shares) for a period of more than [***], the Company and its Subsidiaries shall not, directly or indirectly, without the consent of each Shareholder, (i) altering incur or changing the rights, or privileges of the Ordinary Shares or creating (by reclassification or otherwise) issue any new class or series of shares having rights, preferences or privileges senior to or on a parity with the Ordinary Shares;
(ii) reclassifying indebtedness that would encumber any outstanding Ordinary Shares into shares having rights, preferences or privileges with respect to dividends or assets senior to or on a parity with the Ordinary Shares;
(iii) declaring or paying any dividend or distribution or otherwise redeeming or repurchasing any issued and outstanding shares of the Company;
(iv) making any acquisition, sale of control or assets, merger, consolidation, joint venture or partnership arrangements exceeding the materiality threshold established by the Board from time to time, except pursuant to the exercise of the Drag-Along Right;
(v) effecting an increase or reduction of the authorized share capital, split-off, spin-off, dissolution, liquidation, winding-up or bankruptcy intellectual property of the Company or any material Subsidiary thereof (for the avoidance of doubt, issuance of any shares under the exceptional proviso of the definition of “New Securities” shall not be subject to such approvals);
(vi) selling, mortgaging, pledging, leasing, transferring, incurring a lien on or otherwise disposing of substantially all of its assets or Subsidiaries, (ii) issue any of the assets which are outside the ordinary course of business Equity Securities of the Company and exceeding that are senior to the materiality threshold established by Ordinary Shares with respect to the Board from time right to time;
(vii) making any material changes to or engaging in any business materially different from the Core Business, or ceasing any material existing business line or activities of the Company;
(viii) incurring any material indebtedness or assuming any material financial obligation exceeding the materiality threshold established by the Board from time to time and outside the ordinary course of business of the Company;
(ix) making any capital expenditures or investment in any other company exceeding US$400,000,000 or such other materiality threshold established by the Board from time to time;
receive (x) creating any encumbrance over dividends or other distributions to shareholders or (y) proceeds in the whole or part event of the share capitalliquidation, undertaking, material property dissolution or material assets winding-up of the Company or (including for such purposes in connection with any material Subsidiary thereofchange of control transaction), other than as permitted by the annual budget or the business and financial plan approved by the Board;
(xiiii) increasing or decreasing the authorized size of the Board; or
(xii) amending or waiving any provision of the Articles in a manner that would alter alter, amend or change the rights, preferences preference or privileges of the Ordinary Shares.
, including in connection with any reclassification, recapitalization, reorganization or restructuring, (civ) The Company shall notrecommend, and shall not permit directly or indirectly, or take any other Group Company toaction to (A) increase or decrease the size of the Board of Directors or (B) co-opt or appoint to the Board of Directors in place of a Fortress Designee any Person other than a Fortress Designee, (v) make any changes proposal to amend, repeal or otherwise modify any of the Control Documents including any transfer or assignment of any party’s rights and obligations under any of the Control Documents and any appointment of representatives, specified persons or proxies under the Control Documents, except as contemplated in this Agreement or by the Tencent Transaction Documents, without first obtaining the approval (by vote or written consent, as provided by applicable Laws or the Articles) of the holders of at least 66.7% of the then total issued and outstanding Ordinary Shares provision of the Company.
’s articles of association that would be reasonably expected to adversely affect the interests of any Fortress Shareholder or (dvi) Without prejudice make any proposal to Section 10.2(b) above, modify the Company shall not, and shall not permit rights of any other Group Company to, carry out any of the following actions involving itself or any of its Subsidiaries without first obtaining the prior written approval of Tencent:
(i) any merger, consolidation, transfer of shares or other form of restructuring Equity Securities of the Company involving in a Restricted Person;
(ii) any sale of all or substantially all of the assets of the Group Companies to a Restricted Person;
(iii) any issuance of New Securities by the Company manner adverse to any Restricted Person;
(iv) entering into any joint venture or partnership arrangement with a Restricted Person; or
(v) engaging in any business other than the Core BusinessShareholder.
Appears in 2 contracts
Sources: Shareholders’ Rights Agreement (Fortress Investment Group LLC), Shareholders’ Rights Agreement (Fortress Investment Group LLC)
Protective Provisions. In addition to any approvals required by law, so long as the Purchasers retain through beneficial ownership shares of capital stock representing, on an as-converted basis, at least 7.5% of the outstanding shares of Common Stock on an as-converted basis (a) The after giving effect to and assuming exercise or conversion of all outstanding options, warrants and other convertible securities, whether or not vested), the Company shall not sell or issue any New Securities without first obtaining the approval (by vote or written consent, as provided by applicable Laws or the Articles) of the Shareholders holding at least 66.7% of the then total issued and outstanding Ordinary Shares held by all Shareholders. The Company shall not sell or issue any New Securities at a purchase price that has a pre-money valuation of the Company of less than US$6 billion without first obtaining the approval (by vote or written consent, as provided by applicable Laws or the Articles) of the Shareholders holding at least 90% of the then total issued and outstanding Ordinary Shares held by all Shareholders.
(b) Without prejudice to Section 10.2(a) above, the Company shall not, and shall not permit any other applicable Group Company to, except as expressly permitted under this Agreement or in connection with any put right of a Shareholder as set forth in the applicable Subscription Agreements, carry out any of the following actions involving itself or any of its Subsidiaries as applicable without first obtaining the approval (by vote or written consent, as provided by applicable Laws or the Articles) of the Shareholders holding at least 66.7% of the then total issued and outstanding Ordinary Shares held by all Shareholders:
(i) altering or changing the rights, or privileges of the Ordinary Shares or creating (by reclassification or otherwise) any new class or series of shares having rights, preferences or privileges senior to or on a parity with the Ordinary Shares;
(ii) reclassifying any outstanding Ordinary Shares into shares having rights, preferences or privileges with respect to dividends or assets senior to or on a parity with the Ordinary Shares;
(iii) declaring or paying any dividend or distribution or otherwise redeeming or repurchasing any issued and outstanding shares of the Company;
(iv) making any acquisition, sale of control or assets, merger, consolidation, joint venture or partnership arrangements exceeding the materiality threshold established by the Board from time to time, except pursuant to the exercise of the Drag-Along Right;
(v) effecting an increase or reduction of the authorized share capital, split-off, spin-off, dissolution, liquidation, winding-up or bankruptcy of the Company or any material Subsidiary thereof (for the avoidance of doubt, issuance of any shares under the exceptional proviso of the definition of “New Securities” shall not be subject to such approvals);
(vi) selling, mortgaging, pledging, leasing, transferring, incurring a lien on or otherwise disposing of substantially all of its assets or any of the assets which are outside the ordinary course of business of the Company and exceeding the materiality threshold established by the Board from time to time;
(vii) making any material changes to or engaging in any business materially different from the Core Business, or ceasing any material existing business line or activities of the Company;
(viii) incurring any material indebtedness or assuming any material financial obligation exceeding the materiality threshold established by the Board from time to time and outside the ordinary course of business of the Company;
(ix) making any capital expenditures or investment in any other company exceeding US$400,000,000 or such other materiality threshold established by the Board from time to time;
(x) creating any encumbrance over the whole or part of the share capital, undertaking, material property or material assets of the Company or any material Subsidiary thereof, other than as permitted by the annual budget or the business and financial plan approved by the Board;
(xi) increasing or decreasing the authorized size of the Board; or
(xii) amending or waiving any provision of the Articles in a manner that would alter or change the rights, preferences or privileges of the Ordinary Shares.
(c) The Company shall not, and shall not permit any other Group Company to, make any changes to any of the Control Documents including any transfer or assignment of any party’s rights and obligations under any of the Control Documents and any appointment of representatives, specified persons or proxies under the Control Documents, except as contemplated in this Agreement or by the Tencent Transaction Documents, without first obtaining the approval (by vote or written consent, as provided by applicable Laws or the Articleslaw) of the holders of at least 66.770% of the then total issued and outstanding Ordinary Shares shares of Series B Preferred Stock purchased under this Agreement or the Company.
(d) Without prejudice to Section 10.2(b) above, the Company shall not, and shall not permit any other Group Company to, carry out any of the following actions involving itself or any of its Subsidiaries without first obtaining the prior written approval of TencentCommon Stock into which such shares are converted:
(ia) any consummate a merger, consolidation, transfer of shares consolidation or other form of restructuring of the Company involving a Restricted Person;
(ii) any sale of all or substantially all of the assets of the Group Companies Company in which the per share consideration received by the holders of Series B Preferred Stock is less than three (3) times the Conversion Price in effect immediately prior to a Restricted Personthe vote of the stockholders of the Company to approve such transaction or, if there shall be no such vote, the date of such transaction;
(iiib) any issuance repurchase or redeem equity securities or debt (other than redemptions pursuant to Section 6 of New Securities by the Company Certificate of Designation and except to any Restricted Personthe extent that such debt is due in accordance with its terms);
(ivc) entering into authorize or issue any joint venture equity securities senior to or partnership arrangement pari passu with a Restricted Person; orthe Series B Preferred Stock;
(vd) engaging authorize or issue any additional shares of Series B Preferred Stock;
(e) increase or decrease the authorized size of the Company's Board of Directors;
(f) incur, refinance, guarantee or assume any indebtedness other than in the ordinary course of business, provided that all indebtedness of the Company (including drawdowns under existing credit facilities) does not exceed an amount equal to 10% of the market capitalization of the Company in the aggregate at the time of incurrence;
(g) create, incur or assume any business lien or encumbrance of any kind upon the assets of the Company, whether now owned or hereafter acquired, other than existing liens or encumbrances in excess of an amount equal to 10% of the market capitalization of the Company at the time of the creation, incurrence or assumption;
(h) engage in transactions with Affiliates other than those approved by the Compensation Committee of the Company; and
(i) establish any non-wholly owned Subsidiary or sell or transfer any Subsidiary's stock or cause any Subsidiary to issue any stock to any Person other than the Core BusinessCompany.
Appears in 1 contract
Protective Provisions. (a) The Company shall not sell perform the following, --------------------- without the prior written consent or issue affirmative vote of each of (i) the holders of record of at least a majority of the outstanding shares of Series C Preferred, (ii) HSN and (iii) with respect to (g) below only, GRP:
(a) a merger or consolidation of the Company with QVC, Inc. or Comcast, Inc. or any New Securities without first obtaining of their respective successors and assigns;
(b) the approval (acquisition by vote the Company of another business entity, joint venture or written consent, as provided by applicable Laws partnership or the Articles) establishment of non-wholly owned subsidiaries, any of which involve the contribution of the Shareholders holding at least 66.7greater of $5,000,000 or 10% of the then total issued and outstanding Ordinary Shares held by all Shareholders. The Company shall not sell or issue any New Securities at a purchase price that has a prepost-money valuation of the Company based on its then most recently completed equity financing (the "Investment Basket"); provided, however, such restriction shall not apply to the merger, consolidation, share exchange, or other reorganization or business combination (a "Reorganization") involving a change of less than US$6 billion without first obtaining the approval (by vote or written consent, as provided by applicable Laws or the Articles) control of the Shareholders holding Company (including without limitation, a Reorganization in which the stockholders of the Company immediately prior to such Reorganization own fifty percent (50%) or less of the voting capital stock of the resulting entity);
(c) the incurrence of indebtedness in excess of the Investment Basket;
(d) any expansions into new businesses other than the consumer information business or electronic commerce;
(e) any asset sales in excess of the Investment Basket;
(f) any liens on or encumbrances of assets in excess of the Investment Basket, except liens or encumbrances securing senior indebtedness of the Company to a commercial bank or a syndicate of commercial banks;
(g) any issuances or sales of New Securities in excess of the Investment Basket; provided, that at least 90% one other director of the then total issued and outstanding Ordinary Shares held by all Shareholders.Company who was also a director as of the date of the original issuance of Series C Preferred (or replacement thereof) other than the Series C Director vetoes such proposed issuance or sale;
(bh) Without prejudice any issuances or sales of New Securities to QVC, Inc. or any of its successors and assigns;
(i) any issuances or sales of New Securities to Comcast, Inc. or any of its successors or assigns other than issuances and sales of New Securities purchased by Comcast, Inc. pursuant to its right set forth in Section 10.2(a7.1(a);
(j) aboveany payments of dividends, repurchases or redemptions of securities (except pursuant to stock options or restricted stock purchase agreements with employees or consultants of the Company shall not, and shall not permit any other applicable Group Company to, except as expressly permitted under this Agreement approved by the Board of Directors or in connection with any put right of a Shareholder as set forth in the applicable Subscription Agreements, carry out any Company's Amended and Restated Certificate of Incorporation) or debt (except to the extent such debt has been approved by a majority of the following actions involving itself or any Board of Directors is due in accordance with its Subsidiaries as applicable without first obtaining the approval (by vote or written consent, as provided by applicable Laws or the Articles) of the Shareholders holding at least 66.7% of the then total issued and outstanding Ordinary Shares held by all Shareholders:
(i) altering or changing the rights, or privileges of the Ordinary Shares or creating (by reclassification or otherwise) any new class or series of shares having rights, preferences or privileges senior to or on a parity with the Ordinary Sharesterms);
(iik) reclassifying any outstanding Ordinary Shares into shares having rights, preferences or privileges transactions with respect to dividends or assets senior to or on a parity with the Ordinary Shares;
(iii) declaring or paying any dividend or distribution or otherwise redeeming or repurchasing any issued and outstanding shares affiliates of the Company;
(ivl) making any acquisition, sale of control or assets, merger, consolidation, joint venture or partnership arrangements exceeding a change in the materiality threshold established by the Board from time to time, except pursuant to the exercise of the Drag-Along Right;
(v) effecting an increase or reduction of the authorized share capital, split-off, spin-off, dissolution, liquidation, winding-up or bankruptcy bylaws of the Company or any material Subsidiary thereof (for except that the avoidance Company shall be permitted to increase the number of doubt, issuance of any shares under directors authorized thereunder without either the exceptional proviso consent of the definition Series C Preferred or the consent of “New Securities” shall not be subject to such approvalsHSN);
(vim) selling, mortgaging, pledging, leasing, transferring, incurring a lien on or otherwise disposing of substantially all of its assets or any of the assets which are outside the ordinary course of business of the Company and exceeding the materiality threshold established by the Board from time to time;
(vii) making any material changes to or engaging change in any business materially different from the Core Business, or ceasing any material existing business line or activities of the Company;
(viii) incurring any material indebtedness or assuming any material financial obligation exceeding the materiality threshold established by the Board from time to time and outside the ordinary course of business of the Company;
(ix) making any capital expenditures or investment in any other company exceeding US$400,000,000 or such other materiality threshold established by the Board from time to time;
(x) creating any encumbrance over the whole or part of the share capital, undertaking, material property or material assets of the Company or any material Subsidiary thereof, other than as permitted by the annual budget or the business and financial plan approved by the Board;
(xi) increasing or decreasing the authorized size of the Board's independent public accountants; or
(xiin) amending any registrations of securities under the Securities Act, except for a Qualified IPO and except pursuant to Section 5.1 hereof; provided, however, in the event the Series C Holders, HSN or waiving any provision GRP, as the case may be, do not consent to the proposed transaction, their written rejection must be received by the Company within 15 days of the Articles in a manner that would alter date the Series C Holders, HSN or change the rights, preferences or privileges GRP receive notification of the Ordinary Shares.
(c) The proposed transaction. If such rejection is not received by the Company shall notwithin such 15-day period, and shall not permit any other Group the Company to, make any changes to may effect the proposed transaction within a 90-day period thereafter without further complying with this Section 10. Notwithstanding any of the Control Documents including foregoing, in no event shall the Series C Preferred, HSN or GRP have any transfer consent or assignment of voting right pursuant to this Section 10 with respect to any party’s rights and obligations under any of Reorganization other than as set forth in Section 10(a) or Section 10(b) (subject to the Control Documents and any appointment of representatives, specified persons limits set forth therein) above or proxies under the Control Documents, except as contemplated in this Agreement or by the Tencent Transaction Documents, without first obtaining the approval (by vote or written consent, as provided by applicable Laws law. The preceding sentence shall not limit in any way, the voting right of any HSN Director, any Series C Director or the Articles) of the holders of at least 66.7% of the then total issued and outstanding Ordinary Shares of any director elected by GRP pursuant to the Company.
(d) Without prejudice to Section 10.2(b) above, the 's charter. The Company shall not, and shall not permit any other Group Company to, carry out any of the following actions involving itself or any of its Subsidiaries without first obtaining the prior written approval of Tencent:
acknowledges that (i) any mergerits annual budget, consolidation, transfer of shares or other form of restructuring of the Company involving a Restricted Person;
and (ii) any sale adoption or amendment of all key employment contracts or substantially all benefit plans, including, but not limited to, stock option plans, shall be subject to approval of the assets Company's Board of Directors, consistent with the Company's then existing charter and by- laws. With respect to the Series C Preferred, the provisions of this Section 10 shall terminate and be of no further force or effect upon the earlier of (i) the date on which there are no shares of Series C Preferred outstanding (due to conversion, redemption or otherwise), and (ii) upon the closing of a Qualified IPO. With respect to HSN, the provisions of this Section 10 shall terminate and be of no further force or effect upon the earlier of (i) the date on which HSN holds less than 50% of the Group Companies capital stock of the Company (on an as converted to Common Stock basis and as adjusted for stock dividends, stock splits, stock combinations, recapitalizations and the like) that it held as of the date of this Agreement, and (ii) upon the closing of a Restricted Person;
Qualified IPO. HSN's rights under this Section 10 may not be assigned. With respect to GRP, the provisions of this Section 10 shall terminate and be of no further force or effect upon the earlier of (iiii) any the date on which GRP holds less than 100% of the capital stock of the Company (on an as converted to Common Stock basis and as adjusted for stock dividends, stock splits, stock combinations, recapitalizations and the like) that it held as of the date of the initial issuance of New Securities by shares of Series E Preferred to GRP, and (ii) upon the Company to any Restricted Person;
(iv) entering into any joint venture or partnership arrangement with closing of a Restricted Person; or
(v) engaging in any business other than the Core BusinessQualified IPO. GRP's rights under this Section 10 may not be assigned.
Appears in 1 contract
Protective Provisions. (a) The So long as any shares of Preferred Stock are outstanding, the Company shall not sell or issue any New Securities will not, without first obtaining the approval (by vote or written consent, as provided by applicable Laws or the Articles) of the Shareholders holding at least 66.7% Holders of a majority of the then total issued and outstanding Ordinary Shares held by all Shareholders. The Company shall not sell shares of Preferred Stock:
(a) permit the amendment, modification or issue any New Securities at a purchase price that has a pre-money valuation repeal of the Company Company’s Articles of less than US$6 billion without first obtaining the approval (Incorporation or Bylaws, in either case whether by vote merger or written consent, as provided by applicable Laws or the Articles) of the Shareholders holding at least 90% of the then total issued and outstanding Ordinary Shares held by all Shareholders.otherwise;
(b) Without prejudice to Section 10.2(a) abovepermit the amendment, the Company shall notmodification, and shall not permit any other applicable Group Company toor repeal of this Certificate of Designation, except as expressly permitted under this Agreement whether by merger or in connection with any put right of a Shareholder as set forth in the applicable Subscription Agreements, carry out any of the following actions involving itself or any of its Subsidiaries as applicable without first obtaining the approval (by vote or written consent, as provided by applicable Laws or the Articles) of the Shareholders holding at least 66.7% of the then total issued and outstanding Ordinary Shares held by all Shareholders:otherwise;
(ic) altering or changing the rightsissue, sell, or privileges deliver (whether through the issuance or granting of the Ordinary Shares or creating (by reclassification Rights or otherwise) any new class shares of Senior Stock or series of shares having rights, preferences Parity Stock or privileges senior reclassify or modify any Junior Stock or Parity Stock so as to become Senior Stock or on a parity with the Ordinary SharesParity Stock;
(iid) reclassifying any outstanding Ordinary Shares into shares having rights, preferences declare or privileges with respect to dividends or assets senior to or on a parity with the Ordinary Shares;
(iii) declaring or paying pay any dividend (other than dividends payable solely in Common Stock) or distribution on, or make any payment on account of, or set apart assets for a sinking or analogous fund to, or, purchase, redeem, defease, retire or otherwise redeeming or repurchasing acquire, any issued and outstanding shares of the Company;
(iv) making any acquisition, sale class of control or assets, merger, consolidation, joint venture or partnership arrangements exceeding the materiality threshold established by the Board from time to time, except pursuant to the exercise of the Drag-Along Right;
(v) effecting an increase or reduction of the authorized share capital, split-off, spin-off, dissolution, liquidation, winding-up or bankruptcy capital stock of the Company or any material Subsidiary thereof (for the avoidance of doubtwarrants or options to purchase any such capital stock, issuance of any shares under the exceptional proviso of the definition of “New Securities” shall not be subject to such approvals);
(vi) selling, mortgaging, pledging, leasing, transferring, incurring a lien on whether now or otherwise disposing of substantially all of its assets or any of the assets which are outside the ordinary course of business of the Company and exceeding the materiality threshold established by the Board from time to time;
(vii) making any material changes to or engaging in any business materially different from the Core Businesshereafter outstanding, or ceasing any material existing business line or activities of the Company;
(viii) incurring any material indebtedness or assuming any material financial obligation exceeding the materiality threshold established by the Board from time to time and outside the ordinary course of business of the Company;
(ix) making any capital expenditures or investment in make any other company exceeding US$400,000,000 distribution in respect thereof, either directly or such other materiality threshold established by the Board from time to time;
(x) creating any encumbrance over the whole indirectly, whether in cash or part of the share capital, undertaking, material property or material assets in obligations of the Company or any material Subsidiary thereofsubsidiary of the Company (such declarations, other than payments, setting apart, purchases, redemptions, defeasances, retirements, acquisitions and distributions being referred to herein as permitted by “Restricted Payments”); provided, however, that the annual budget Company or any subsidiary of the business and financial plan Company may make Restricted Payments with respect to any shares of Senior Stock or Parity Stock the issuance of which has been approved by the Boardin accordance herewith;
(xie) increasing permit the amendment or decreasing the authorized size modification of the BoardCertificate of Designation for any other series of preferred stock of the Company; or
(xiif) amending or waiving any provision of the Articles in a manner that would alter or change the rights, preferences or privileges of the Ordinary Shares.
(c) The Company shall not, and shall not permit any other Group Company to, make any changes to any of the Control Documents including any transfer or assignment of any party’s rights and obligations under any of the Control Documents and any appointment of representatives, specified persons or proxies under the Control Documents, except as contemplated in this Agreement or by the Tencent Transaction Documents, without first obtaining the approval (by vote or written consent, as provided by applicable Laws or the Articles) of the holders of at least 66.7% of the then total issued and outstanding Ordinary Shares of the Company.
(d) Without prejudice to Section 10.2(b) above, the Company shall not, and shall not permit any other Group Company to, carry out any of the following actions involving itself or any of its Subsidiaries without first obtaining the prior written approval of Tencent:
(i) any merger, consolidation, transfer of shares or other form of restructuring of the Company involving a Restricted Person;
(ii) any sale of all or substantially all of the assets of the Group Companies to a Restricted Person;
(iii) any issuance of New Securities by subject the Company to any Restricted Person;
(iv) entering into any joint venture or partnership arrangement with transaction that would be a Restricted Person; or
(v) engaging in any business other Change of Control. With respect to actions by the Holders upon those matters on which the Holders may vote as a separate class, such actions may be taken without a stockholders meeting by the written consent of Holders who would be entitled to vote at a meeting having voting power to cast not less than the Core Businessminimum number of votes that would be necessary to authorize or take such action at a meeting at which all the shares of Preferred Stock is entitled to vote were present and voted. In addition, the Holders may call a special meeting of the Company’s stockholders upon the occurrence of the events described above by providing notice of the exercise of such right to the Company and the Company will take all steps necessary to hold such meeting as soon as practicable after the receipt of such notice.
Appears in 1 contract
Protective Provisions. (a) The Provided that by January 8, 2010, the Company shall not sell or issue any New Securities without first obtaining has received the approval (by vote or written consent, as Aggregate Investment Amount in accordance with the Purchase Agreement and provided by applicable Laws further that Rock Island or the Articlesmembers of Rock Island as of September 9, 2009) (including any member of Rock Island to whom rights or securities purchased under the Shareholders holding Purchase Agreement were assigned as of September 9, 2009), still beneficially own at least 66.766% of the then total issued and outstanding Ordinary Shares held by all Shareholders. The Company shall not sell or issue any New Securities at a purchase price that has a pre-money valuation 550,055 shares of the Company of less than US$6 billion without first obtaining Company’s Series B Preferred Stock purchased pursuant to the approval (by vote or written consent, as provided by applicable Laws or the Articles) of the Shareholders holding at least 90% of the then total issued and outstanding Ordinary Shares held by all Shareholders.
(b) Without prejudice to Section 10.2(a) abovePurchase Agreement, the Company shall not, and shall not permit any other applicable Group Company to, except as expressly permitted under this Agreement or in connection with any put right of a Shareholder as set forth in the applicable Subscription Agreements, carry out any of the following actions involving itself or any of its Subsidiaries as applicable without first obtaining the approval (by vote or written consent, as provided by applicable Laws or the Articles) of the Shareholders holding holders of at least 66.7% two-thirds of the then total issued and outstanding Ordinary Shares held by all Shareholdersshares of Series B Preferred Stock voting together as a single class:
(i) altering increase or changing decrease the rights, or privileges authorized size of the Ordinary Shares Board or creating (by reclassification any committee thereof or otherwise) create any new class or series committee of shares having rights, preferences or privileges senior to or on a parity with the Ordinary SharesBoard;
(ii) reclassifying propose to amend or waive any outstanding Ordinary Shares into shares having rights, preferences or privileges with respect to dividends or assets senior to or on a parity with provision of the Ordinary SharesCompany’s constitutional documents;
(iii) declaring except with respect to an Exempt Issuance, sell or paying issue any equity or debt security or warrant, option or other right to purchase any equity or debt security (with the exception of any shares issued upon conversion of shares of the Series B Preferred Stock or warrants issuable pursuant to the Purchase Agreement) or declare or pay any dividend or distribution or otherwise redeeming redeem or repurchasing any issued and outstanding shares of the Company;
(iv) making make, or engage in a transaction that results in, any acquisition, sale of control a substantial portion of equity or assets, merger, consolidation, plan of arrangement, redomiciling, joint venture or partnership arrangements exceeding the materiality threshold established by the Board from time or form any new subsidiary (including any “variable interest entity”) or pass any resolution relating to time, except pursuant to the exercise of the Drag-Along Right;
(v) effecting an increase or reduction of the authorized share capital, split-off, spin-off, dissolution, dissolution or liquidation, winding-up or bankruptcy of the Company or any material Subsidiary thereof (for the avoidance of doubt, issuance of any shares under the exceptional proviso of the definition of “New Securities” shall not be subject to such approvals);
(vi) selling, mortgaging, pledging, leasing, transferring, incurring a lien on or otherwise disposing of substantially all of its assets or any of the assets which are outside the ordinary course of business of the Company and exceeding the materiality threshold established by the Board from time to time;
(vii) making any material changes to or engaging in any business materially different from the Core Business, or ceasing any material existing business line or activities of the Company;
(viii) incurring any material indebtedness or assuming any material financial obligation exceeding the materiality threshold established by the Board from time to time and outside the ordinary course of business of the Company;
(ix) making any capital expenditures or investment in any other company exceeding US$400,000,000 or such other materiality threshold established by the Board from time to time;
(x) creating any encumbrance over the whole or part of the share capital, undertaking, material property or material assets of the Company or any material Subsidiary thereof, other than as permitted by the annual budget or the business and financial plan approved by the Board;
(xi) increasing or decreasing the authorized size of the Board; or
(xiiiv) amending engage or waiving enter into any provision of the Articles in a manner that would alter transaction or change the rights, preferences or privileges of the Ordinary Shares.
(c) The Company shall not, and shall not permit any other Group Company to, make any changes to agreement with any of the Control Documents including Company’s affiliates, shareholders, directors or officers, relatives of such shareholders, directors or officers or affiliates of such relatives or other related parties. For the avoidance of doubts, this Section 7 does not intend to, nor does it, create and recognize any transfer or assignment of any party’s additional rights and obligations under any (other than those rights already provided in the General Corporation Law of the Control Documents and any appointment State of representatives, specified persons Delaware or proxies under other applicable laws) to stockholders that are not holders of the Control Documents, except as contemplated in this Agreement or by the Tencent Transaction Documents, without first obtaining the Series B Preferred Stock. The approval (by vote or written consent, as provided by applicable Laws or the Articles) requirement of the holders of at least 66.7% of the then total issued and outstanding Ordinary Shares of the Company.
(d) Without prejudice to Series B Preferred Stock as set forth above for any matters listed in this Section 10.2(b) above, the Company shall 7 does not, and shall not permit any other Group Company toby itself, carry out any of the following actions involving itself indicates that such matter must be determined or any of its Subsidiaries without first obtaining the prior written approval of Tencent:
(i) any merger, consolidation, transfer of shares or other form of restructuring of the Company involving a Restricted Person;
(ii) any sale of all or substantially all of the assets of the Group Companies to a Restricted Person;
(iii) any issuance of New Securities approved by the Company to any Restricted Person;
(iv) entering into any joint venture or partnership arrangement with a Restricted Person; or
(v) engaging stockholders in any business other than the Core Businessgeneral.
Appears in 1 contract
Sources: Series B Convertible Preferred Stock Purchase Agreement (Echo Metrix, Inc.)
Protective Provisions. (a) The Company In addition to any other class vote that may be required by law, this Corporation shall not sell or issue any New Securities without first obtaining the approval (by vote or written consent, as provided by applicable Laws or the Articleslaw) of the Shareholders holding holders of at least 66.7a majority of the then outstanding shares of Preferred Stock:
(i) sell, convey or otherwise dispose of all or substantially all of its property or business, or merge into or effect a reorganization with any other corporation (other than a wholly owned subsidiary corporation) in which the shareholders of this Corporation immediately prior to the transaction possess less than 50% of the then total voting power of the surviving entity (or its parent) immediately after the transaction, or sell the capital stock of the Corporation where the shareholders of this Corporation immediately prior to the transaction possess less than 50% of the voting power of the Corporation immediately after the transaction;
(ii) change the rights, preferences, privileges or restrictions of the Preferred Stock;
(iii) increase or decrease the aggregate number of authorized shares of Preferred Stock, other than as provided in either subdivision (b) of Section 405 or subdivision (c) of Section 902 of the California Corporations Code;
(iv) create a new class or series of shares having rights, preferences or privileges or increase the number of authorized shares of any class or shares having rights, preferences or privileges equal to or senior to any outstanding class or series;
(v) pay any dividend on or purchase, redeem or otherwise acquire any security junior to the Preferred Stock other than repurchases at cost from employees, consultants, lessors or suppliers upon termination of employment, consulting, lessor-lessee, or supplier-purchaser relationship, respectively; or
(vi) voluntarily dissolve or liquidate the Corporation.
(b) Notwithstanding the foregoing Section 6(a), in addition to any other series vote that may be required by law, so long as 40% of the originally issued and outstanding Ordinary Shares held by all Shareholders. The Company shares of Series C Preferred are outstanding, this Corporation shall not sell or issue any New Securities at a purchase price that has a pre-money valuation of the Company of less than US$6 billion without first obtaining the approval (by vote or written consent, as provided by applicable Laws or the Articleslaw) of the Shareholders holding holders of at least 90a majority of the then outstanding shares of Series C Preferred:
(i) materially adversely change the rights, preferences, privileges or restrictions of the Series C Preferred;
(ii) increase or decrease the aggregate number of authorized shares of Series C Preferred, other than as provided in either subdivision (b) of Section 405 or subdivision (c) of Section 902 of the California Corporations Code; or
(iii) create a new class or series of shares having rights, preferences or privileges senior to the Series C Preferred.
(c) Notwithstanding the foregoing Sections 6(a) and 6(b), in addition to any other series vote that may be required by law, so long as 40% of the then total originally issued and outstanding Ordinary Shares held by all Shareholders.
(b) Without prejudice to Section 10.2(a) aboveshares of Series C Preferred are outstanding, the Company shall not, and this Corporation shall not permit any other applicable Group Company to, except as expressly permitted under this Agreement or in connection with any put right of a Shareholder as set forth in the applicable Subscription Agreements, carry out any of the following actions involving itself or any of its Subsidiaries as applicable without first obtaining the approval (by vote or written consent, as provided by applicable Laws or the Articleslaw) of the Shareholders holding at least 66.7holders of 66 2/3% of the then total issued and outstanding Ordinary Shares held by all Shareholders:
(i) altering or changing the rights, or privileges of the Ordinary Shares or creating (by reclassification or otherwise) any new class or series of shares having rights, preferences or privileges senior to or on a parity with the Ordinary Shares;
(ii) reclassifying any outstanding Ordinary Shares into shares having rights, preferences or privileges with respect to dividends or assets senior to or on a parity with the Ordinary Shares;
(iii) declaring or paying any dividend or distribution or otherwise redeeming or repurchasing any issued and outstanding shares of the Company;
(iv) making any acquisitionSeries C Preferred, sale of control voluntarily dissolve or assetsliquidate, mergersell, consolidation, joint venture or partnership arrangements exceeding the materiality threshold established by the Board from time to time, except pursuant to the exercise of the Drag-Along Right;
(v) effecting an increase or reduction of the authorized share capital, split-off, spin-off, dissolution, liquidation, winding-up or bankruptcy of the Company or any material Subsidiary thereof (for the avoidance of doubt, issuance of any shares under the exceptional proviso of the definition of “New Securities” shall not be subject to such approvals);
(vi) selling, mortgaging, pledging, leasing, transferring, incurring a lien on convey or otherwise disposing dispose of all or substantially all of its assets property or business, or merge into or effect a reorganization with any other corporation (other than a wholly owned subsidiary corporation) in which the shareholders of this Corporation immediately prior to the transaction possess less than 50% of the voting power of the surviving entity (or its parent) immediately after the transaction if the consideration received by the holders of the Series C Preferred as a result of any such liquidation, dissolution, merger or sale of all or substantially all of the assets which are outside the ordinary course of business of the Company Corporation is less than $2.50 per share (as adjusted for any stock dividends, combinations, splits, recapitalizations and exceeding the materiality threshold established by the Board from time like with respect to time;
(vii) making any material changes to or engaging in any business materially different from the Core Business, or ceasing any material existing business line or activities of the Company;
(viii) incurring any material indebtedness or assuming any material financial obligation exceeding the materiality threshold established by the Board from time to time and outside the ordinary course of business of the Company;
(ix) making any capital expenditures or investment in any other company exceeding US$400,000,000 or such other materiality threshold established by the Board from time to time;
(x) creating any encumbrance over the whole or part of the share capital, undertaking, material property or material assets of the Company or any material Subsidiary thereof, other than as permitted by the annual budget or the business and financial plan approved by the Board;
(xi) increasing or decreasing the authorized size of the Board; or
(xii) amending or waiving any provision of the Articles in a manner that would alter or change the rights, preferences or privileges of the Ordinary Sharesshares).
(cd) The Company shall notNotwithstanding the foregoing Section 6(a), and in addition to any other series vote that may be required by law, so long as 40% of the originally issued shares of Series D Preferred are outstanding, this Corporation shall not permit any other Group Company to, make any changes to any of the Control Documents including any transfer or assignment of any party’s rights and obligations under any of the Control Documents and any appointment of representatives, specified persons or proxies under the Control Documents, except as contemplated in this Agreement or by the Tencent Transaction Documents, without first obtaining the approval (by vote or written consent, as provided by applicable Laws or the Articleslaw) of the holders of at least 66.766 2/3% of the then total issued and outstanding Ordinary Shares shares of Series D Preferred, materially adversely change the rights, preferences, privileges or restrictions of the CompanySeries D Preferred.
(de) Without prejudice to Section 10.2(b) aboveUnless otherwise required by California law or except as provided herein, the Company shall not, and shall holders of Common Stock will not permit have the right to vote as a separate class on any other Group Company to, carry out any of the following actions involving itself or any of its Subsidiaries without first obtaining the prior written approval of Tencent:
(i) any merger, consolidation, transfer of shares or other form of restructuring of the Company involving a Restricted Person;
(ii) any sale of all or substantially all of the assets of the Group Companies to a Restricted Person;
(iii) any issuance of New Securities by the Company to any Restricted Person;
(iv) entering into any joint venture or partnership arrangement with a Restricted Person; or
(v) engaging in any business other than the Core Businessmatter.
Appears in 1 contract
Sources: Series D Convertible Preferred Stock Purchase Agreement (Inventa Technologies Inc)
Protective Provisions. (a) The Company shall not sell or issue Notwithstanding any New Securities without first obtaining other provision of this Agreement and to the fullest extent permitted by applicable law, in addition to the approval (by vote or written consent, as provided by applicable Laws or the Articles) of the Shareholders holding Directors, the following actions described in this Section 3(a) (collectively, the “Consent Matters”) shall require the prior written consent of Varsity as set out below:
i. none of the following actions shall be taken by the Company, including any proposal by the Board to be put to the vote of the stockholders of the Company with respect thereto, without the prior written consent of Varsity until such time as Varsity and its Affiliates cease to Beneficially Own shares of Common Stock representing at least 66.750% of the then total issued and outstanding Ordinary Shares held by all Shareholders. The Company shall not sell or issue any New Securities at a purchase price that has a pre-money valuation voting power of the Company of less than US$6 billion without first obtaining the approval Total Outstanding Securities (by vote or written consent, as provided by applicable Laws or the Articles) of the Shareholders holding at least 90% of the then total issued and outstanding Ordinary Shares held by all Shareholders.
(b) Without prejudice to Section 10.2(a) above, the Company shall not, and shall not permit any other applicable Group Company to, except as expressly permitted under this Agreement or in connection with any put right of a Shareholder as set forth in the applicable Subscription Agreementsproviso in Section 3(a)(i)(I)):
I. amending, carry out altering or changing, or waiving any rights under, this Agreement, the organizational documents, including the Amended and Restated Certificate of Incorporation and Amended and Restated Bylaws of the following actions involving itself or Company (which shall also be subject to Section 5 hereof), and/or the organizational documents of any of its Subsidiaries as applicable without first obtaining the approval (by vote or written consent, as provided by applicable Laws or the Articles) subsidiary of the Shareholders holding at least 66.7% Company; provided that, notwithstanding the foregoing, for so long as Varsity owns any outstanding Common Stock, any amendment, alteration, or change to, or waiver under, other organizational documents, including the Amended and Restated Certificate of Incorporation or Amended and Restated Bylaws of the then total issued and outstanding Ordinary Shares held by all Shareholders:Company, that would adversely affect any rights specific to Varsity (subject to applicable law) require the written consent of Varsity;
(i) altering II. authorizing or changing the rights, or privileges issuing any equity securities of the Ordinary Shares or creating (by reclassification or otherwise) any new class or series of shares Company having rights, preferences or privileges that are superior or senior to the outstanding Common Stock (or on a parity with the Ordinary Sharesany securities convertible or exchangeable therefor pursuant to their terms);
III. any transaction with any stockholder or Affiliate of a stockholder or any Director or officer of the Company or any of its subsidiaries (ii) reclassifying any outstanding Ordinary Shares into shares having rights, preferences or privileges other than employment agreements with respect to dividends or assets senior to or on officers not otherwise affiliated with a parity with the Ordinary Sharesstockholder);
(iii) declaring IV. winding up the Company;
V. the declaration or paying payment of any dividend or other distribution to the stockholders by the Company or otherwise redeeming redemption, repurchase or repurchasing exchange (as applicable) of any issued and outstanding shares equity securities of the Company;
(iv) making VI. issuing or granting any acquisition, sale of control or assets, merger, consolidation, joint venture or partnership arrangements exceeding the materiality threshold established by the Board from time to time, except pursuant to the exercise of the Drag-Along Right;
(v) effecting an increase or reduction of the authorized share capital, split-off, spin-off, dissolution, liquidation, winding-up or bankruptcy equity securities of the Company or any material Subsidiary thereof its subsidiaries, other than (for the avoidance of doubt, issuance of any shares A) grants under the exceptional proviso of the definition of “New Securities” shall not be subject to such approvals);Company’s 2021 Omnibus Incentive Plan, or (B) in connection with transactions consistent with certain specified strategies; and
(vi) selling, mortgaging, pledging, leasing, transferring, incurring a lien on or otherwise disposing of substantially all of its assets or any of the assets which are outside the ordinary course of business of the Company and exceeding the materiality threshold established by the Board from time to time;
(vii) making any material changes to or VII. engaging in any mergers, acquisitions, business materially different from the Core Business, combinations or ceasing similar transactions or entering into any material existing business line arrangements or activities agreements relating to joint ventures or strategic partnerships with a value of the Company;such transaction or arrangement exceeding $300.0 million; and
(viii) incurring any material indebtedness or assuming any material financial obligation exceeding the materiality threshold established by the Board from time to time and outside the ordinary course of business of the Company;
(ix) making any capital expenditures or investment in any other company exceeding US$400,000,000 or such other materiality threshold established by the Board from time to time;
(x) creating any encumbrance over the whole or part of the share capital, undertaking, material property or material assets of the Company or any material Subsidiary thereof, other than as permitted by the annual budget or the business and financial plan approved by the Board;
(xi) increasing or decreasing the authorized size of the Board; or
(xii) amending or waiving any provision of the Articles in a manner that would alter or change the rights, preferences or privileges of the Ordinary Shares.
(c) The Company shall not, and shall not permit any other Group Company to, make any changes to any of the Control Documents including any transfer or assignment of any party’s rights and obligations under any of the Control Documents and any appointment of representatives, specified persons or proxies under the Control Documents, except as contemplated in this Agreement or by the Tencent Transaction Documents, without first obtaining the approval (by vote or written consent, as provided by applicable Laws or the Articles) of the holders of at least 66.7% of the then total issued and outstanding Ordinary Shares of the Company.
(d) Without prejudice to Section 10.2(b) above, the Company shall not, and shall not permit any other Group Company to, carry out any of the following actions involving itself or any of its Subsidiaries without first obtaining the prior written approval of Tencent:
(i) any merger, consolidation, transfer of shares or other form of restructuring of the Company involving a Restricted Person;
(ii) any sale of all or substantially all of the assets of the Group Companies to a Restricted Person;
(iii) any issuance of New Securities VIII. entry by the Company to any Restricted Person;
(iv) entering into any joint venture agreement with respect to the matters described in the foregoing clauses (I) through (VIII) or partnership arrangement with a Restricted Person; or
(v) engaging in taking any business other than the Core Businesssuch action indirectly.
Appears in 1 contract
Sources: Director Nomination Agreement (Specialty Building Products, Inc.)
Protective Provisions. Without the affirmative votes of at least 66 2/3% of the outstanding shares of Common Stock, the Company will not:
(a) The Company shall not issue, sell or issue transfer any New Securities without first obtaining the approval additional Capital Stock, except pursuant to clause (by vote or written consent, as provided by applicable Laws or the Articlesc) of the Shareholders holding at least 66.7% of the then total issued and outstanding Ordinary Shares held by all Shareholders. The Company shall not sell or issue any New Securities at a purchase price that has a pre-money valuation of the Company of less than US$6 billion without first obtaining the approval (by vote or written consent, as provided by applicable Laws or the Articles) of the Shareholders holding at least 90% of the then total issued and outstanding Ordinary Shares held by all Shareholders.below;
(b) Without prejudice sell, assign, transfer or convey all or substantially all of its assets to, or merge or consolidate with or into, any Person (other than an Affiliate of the Company), except for a reincorporation merger or a merger that does not result in a change in the ownership of the Company; or
(c) grant any options, warrants or rights to Section 10.2(a) abovepurchase, or issue securities convertible into, Common Stock, other than the Note; provided, however, the Purchaser agrees and consents to the creation by the Company shall not, and shall not permit any other applicable Group Company to, except as expressly permitted under this Agreement or in connection with any put right of a Shareholder as set forth in stock option plan (the applicable Subscription Agreements"SOP"), carry out any for the benefit of its employees, consultants, officers, directors and independent contractors (e.g., the Purchaser), under the following actions involving itself or any of its Subsidiaries as applicable without first obtaining the approval (by vote or written consent, as provided by applicable Laws or the Articles) of the Shareholders holding at least 66.7% of the then total issued terms and outstanding Ordinary Shares held by all Shareholdersconditions:
(i) altering The SOP will be substantially in the form of Exhibit C attached hereto, and will be adopted by the Board as promptly as possible on or changing after the rights, or privileges Closing Date (subject to stockholder approval within one (1) year of the Ordinary Shares or creating (by reclassification or otherwise) any new class or series date of shares having rights, preferences or privileges senior to or on a parity with the Ordinary Sharesadoption);
(ii) reclassifying any outstanding Ordinary Shares into options to purchase 3,000,000 shares having rightsof Class A Common Stock may be granted on or as promptly as possible after the date of adoption of the SOP, preferences or privileges with respect at an exercise price of $3.00 per share, to dividends or assets senior employees, consultants, officers, directors as determined solely by, and at the discretion of, SYBR (the "SYBR Options"), which shall include the option granted to or on a parity with the Ordinary SharesAdvisor as provided in Section 7.7 (the "Advisor Options");
(iii) declaring or paying any dividend or distribution or otherwise redeeming or repurchasing any issued and outstanding non-qualified options to purchase the same number of shares of Class A Common Stock, and at the Companysame exercise price per share, as constitute the SYBR Options (the "Purchaser Options") shall be granted to the Purchaser or its designees simultaneously with the grant of SYBR Options, the recipients of such Purchaser Options to be determined solely by, and at the discretion of, the Purchaser; provided, such Purchaser Options shall only vest in accordance with subsection (c)(iv)A. below;
(iv) making any acquisition, sale of control or assets, merger, consolidation, joint venture or partnership arrangements exceeding the materiality threshold established by the Board from time to time, except options granted pursuant to subsections (c)(ii) and (iii) (the exercise of which are subject the Drag-Along Right;
(vlimitations imposed in Section 2.7(c)(v) effecting an increase or reduction below) above, shall fully vest, commencing on the date of the authorized share capitalgranting of such options, split-off, spin-off, dissolution, liquidation, winding-up or bankruptcy of the Company or any material Subsidiary thereof (over a period of: A eight years for the avoidance of doubtkey employees listed in Schedule 2.7 attached hereto, issuance of any shares under the exceptional proviso of the definition of “New Securities” shall not be subject to such approvals);
(vi) sellingofficers, mortgagingdirectors, pledging, leasing, transferring, incurring a lien on or otherwise disposing of substantially all of its assets or any of the assets which are outside the ordinary course of business of the Company and exceeding the materiality threshold established by the Board from time to time;
(vii) making any material changes to or engaging in any business materially different from the Core Business, or ceasing any material existing business line or activities of the Company;
(viii) incurring any material indebtedness or assuming any material financial obligation exceeding the materiality threshold established by the Board from time to time and outside the ordinary course of business of the Company;
(ix) making any capital expenditures or investment in any other company exceeding US$400,000,000 or such other materiality threshold established by the Board from time to time;
(x) creating any encumbrance over the whole or part of the share capital, undertaking, material property or material assets of the Company or any material Subsidiary thereof, other than as permitted by the annual budget or the business and financial plan approved by the Board;
(xi) increasing or decreasing the authorized size of the Board; or
(xii) amending or waiving any provision of the Articles in a manner that would alter or change the rights, preferences or privileges of the Ordinary Shares.
(c) The Company shall not, and shall not permit any other Group Company to, make any changes to any of the Control Documents including any transfer or assignment of any party’s rights and obligations under any of the Control Documents and any appointment of representatives, specified persons or proxies under the Control Documents, except as contemplated in this Agreement or by the Tencent Transaction Documents, without first obtaining the approval (by vote or written consent, as provided by applicable Laws or the Articles) of the holders of at least 66.7% the Purchaser Options and the holders of the then total issued and outstanding Ordinary Shares of Advisor Options, at the Company.
(d) Without prejudice to Section 10.2(b) aboverate of: 0% - after year one, the Company shall not0% - after year two, 10% - after year three, 10% - after year four, 15% - after year five, 20% - after year six, 20% - after year seven, and shall not permit any 25% - after year eight; B five years for all other Group Company to, carry out any of employees; at the following actions involving itself or any of its Subsidiaries without first obtaining the prior written approval of Tencentrate of:
(i) any merger, consolidation, transfer of shares or other form of restructuring of the Company involving a Restricted Person;
(ii) any sale of all or substantially all of the assets of the Group Companies to a Restricted Person;
(iii) any issuance of New Securities by the Company to any Restricted Person;
(iv) entering into any joint venture or partnership arrangement with a Restricted Person; or
(v) engaging in any business other than the Core Business.
Appears in 1 contract
Protective Provisions. (a) The Company Without the consent of the Non-SAC Investors holding a majority of the outstanding Unit Equivalents held by the Non-SAC Investors, Holdings and its subsidiaries shall not sell enter into any transaction or issue agreement with SAC or any New Securities of its affiliated funds or any of their respective affiliates, except (i) the management agreement in the form attached hereto as Annex A (the “Management Agreement”) providing for, among other things, indemnification and a transaction grant as described under “Certain Transaction Grants” below, and such agreement will not be permitted to be amended without first obtaining the approval (by vote or written consent, as provided by applicable Laws or the Articles) consent of the Shareholders Non-SAC Investors holding at least 66.7% a majority of the then total issued and outstanding Ordinary Shares Unit Equivalents held by all Shareholdersthe Non-SAC Investors unless such amendment is otherwise approved by a majority of disinterested directors who are not associates or affiliates of SAC, (ii) any other transaction or agreement between Holdings or one of its subsidiaries, on the one hand, and a portfolio company of SAC or any of its affiliated funds or any of their respective affiliates, on the other hand, that is on arm’s-length terms between Holdings or such subsidiary and such portfolio company so long as such agreement is approved by a majority of disinterested directors who are not associates or affiliates of SAC, and (iii) issuances of securities to SAC or its affiliates pursuant to and in compliance with the Non-SAC Investors’ participation rights (described below) following receipt by Holdings of a fairness opinion from an investment banking firm of recognized national standing reasonably acceptable to SAC. The Company shall foregoing Non-SAC Investor consent rights in this paragraph may not sell or issue any New Securities at a purchase price that has a pre-money valuation of the Company of less than US$6 billion without first obtaining the approval (by vote or written consent, as provided by applicable Laws or the Articles) of the Shareholders holding at least 90% of the then total issued and outstanding Ordinary Shares held by all Shareholders.
(b) Without prejudice to Section 10.2(a) above, the Company shall not, and shall not permit any other applicable Group Company to, except as expressly permitted under this Agreement or be transferred in connection with any put right transfer of a Shareholder as set forth in securities to persons that are not otherwise Non-SAC Investors on the applicable Subscription Agreements, carry out any Closing Date (unless to Permitted Transferees) and will terminate upon the earlier of (i) the following actions involving itself or any of its Subsidiaries as applicable without first obtaining Non-SAC Investors party to the approval Agreement on the Closing Date (by vote or written consent, as provided by applicable Laws or the Articlestogether with their Permitted Transferees) of the Shareholders holding ceasing to own at least 66.733% of the then total issued and outstanding Ordinary Shares Unit Equivalents held by all Shareholders:
them on the Closing Date and (ii) immediately prior to the closing of an initial public offering of the equity of Holdings or Airvana, Inc. (“Airvana”) (an “IPO”). Without the consent of (i) altering or changing the rights, or privileges of the Ordinary Shares or creating (by reclassification or otherwise) any new class or series of shares having rights, preferences or privileges senior to or on a parity with the Ordinary Shares;
SAC Investors and (ii) reclassifying any outstanding Ordinary Shares into shares having rights, preferences or privileges with respect to dividends or assets senior to or on Non-SAC Investors holding a parity with the Ordinary Shares;
(iii) declaring or paying any dividend or distribution or otherwise redeeming or repurchasing any issued and outstanding shares majority of the Company;
(iv) making any acquisition, sale of control or assets, merger, consolidation, joint venture or partnership arrangements exceeding the materiality threshold established Unit Equivalents held by the Board from time Non-SAC Investors, Holdings will not make in-kind distributions to time, except pursuant to the exercise of the Drag-Along Right;
(v) effecting an increase or reduction of the authorized share capital, split-off, spin-off, dissolution, liquidation, winding-up or bankruptcy of the Company or any material Subsidiary thereof (for the avoidance of doubt, issuance of any shares under the exceptional proviso of the definition of “New Securities” shall not be subject to such approvals);
(vi) selling, mortgaging, pledging, leasing, transferring, incurring a lien on or otherwise disposing of substantially all of its assets or any of the assets which are outside the ordinary course of business of the Company and exceeding the materiality threshold established by the Board from time to time;
(vii) making any material changes to or engaging in any business materially different from the Core Business, or ceasing any material existing business line or activities of the Company;
(viii) incurring any material indebtedness or assuming any material financial obligation exceeding the materiality threshold established by the Board from time to time and outside the ordinary course of business of the Company;
(ix) making any capital expenditures or investment in any other company exceeding US$400,000,000 or such other materiality threshold established by the Board from time to time;
(x) creating any encumbrance over the whole or part of the share capital, undertaking, material property or material assets of the Company or any material Subsidiary thereof, other than as permitted by the annual budget or the business and financial plan approved by the Board;
(xi) increasing or decreasing the authorized size of the Board; or
(xii) amending or waiving any provision of the Articles in a manner that would alter or change the rights, preferences or privileges of the Ordinary Shares.
(c) The Company shall not, and shall not permit any other Group Company to, make any changes to any of the Control Documents including any transfer or assignment of any party’s rights and obligations under any of the Control Documents and any appointment of representatives, specified persons or proxies under the Control Documents, except as contemplated in this Agreement or by the Tencent Transaction Documents, without first obtaining the approval (by vote or written consent, as provided by applicable Laws or the Articles) of the holders of equity in which such property being distributed is valued at least 66.7% of the then total issued and outstanding Ordinary Shares of the Companyless than fair market value.
(d) Without prejudice to Section 10.2(b) above, the Company shall not, and shall not permit any other Group Company to, carry out any of the following actions involving itself or any of its Subsidiaries without first obtaining the prior written approval of Tencent:
(i) any merger, consolidation, transfer of shares or other form of restructuring of the Company involving a Restricted Person;
(ii) any sale of all or substantially all of the assets of the Group Companies to a Restricted Person;
(iii) any issuance of New Securities by the Company to any Restricted Person;
(iv) entering into any joint venture or partnership arrangement with a Restricted Person; or
(v) engaging in any business other than the Core Business.
Appears in 1 contract
Protective Provisions. (a) The Company In addition to any other rights provided by law, for as long as at least twenty percent (20%) of the Preferred Series B Shares are outstanding, ESAN shall not sell or issue any New Securities without first obtaining the approval (by vote or written consent, as provided by applicable Laws or the Articleslaw) of the Shareholders holding Holders of at least 66.7% a majority of the then outstanding Preferred Shares, voting as a class:
(i) alter, change or amend the rights, preferences or privileges of the Preferred Shares; or
(ii) authorize, create or issue, or obligate itself to issue, any other equity security, including any other security convertible into or exercisable for any equity security (including, without limitation, additional Preferred Shares or shares of ESAN's Series A Preferred Stock) having a preference over, or being on a parity with the Series B Preferred Stock with respect to voting, dividends or upon liquidation.
(b) In addition to any other rights provided by law, for so long as shares of the Series B Preferred Stock having an aggregate Original Series B Issue Price of at least twenty (20%) percent of the total issued Original Series B Issue Price are outstanding and outstanding Ordinary Shares held by all Shareholders. The Company the person to whom such shares were originally issued or an Affiliate of such person, ESAN shall not sell or issue any New Securities at a purchase price that has a pre-money valuation of the Company of less than US$6 billion without first obtaining the approval (by vote or written consent, as provided by applicable Laws or the Articleslaw) of the Shareholders holding Holders of at least 90% a majority of the then total issued and outstanding Ordinary Shares held by all Shareholders.
(b) Without prejudice to Section 10.2(a) aboveshares of Series B Preferred Stock, the Company shall not, and shall not permit any other applicable Group Company to, except voting as expressly permitted under this Agreement or in connection with any put right of a Shareholder as set forth in the applicable Subscription Agreements, carry out any of the following actions involving itself or any of its Subsidiaries as applicable without first obtaining the approval (by vote or written consent, as provided by applicable Laws or the Articles) of the Shareholders holding at least 66.7% of the then total issued and outstanding Ordinary Shares held by all Shareholdersclass:
(i) altering or changing the rightssell, convey, or privileges otherwise dispose of the Ordinary Shares or creating (by reclassification or otherwise) any new class or series of shares having rights, preferences or privileges senior to or on a parity with the Ordinary Shares;
(ii) reclassifying any outstanding Ordinary Shares into shares having rights, preferences or privileges with respect to dividends or assets senior to or on a parity with the Ordinary Shares;
(iii) declaring or paying any dividend or distribution or otherwise redeeming or repurchasing any issued and outstanding shares of the Company;
(iv) making any acquisition, sale of control or assets, merger, consolidation, joint venture or partnership arrangements exceeding the materiality threshold established by the Board from time to time, except pursuant to the exercise of the Drag-Along Right;
(v) effecting an increase or reduction of the authorized share capital, split-off, spin-off, dissolution, liquidation, winding-up or bankruptcy of the Company or any material Subsidiary thereof (for the avoidance of doubt, issuance of any shares under the exceptional proviso of the definition of “New Securities” shall not be subject to such approvals);
(vi) selling, mortgaging, pledging, leasing, transferring, incurring a lien on or otherwise disposing of substantially all of its assets or any of the assets which are outside the ordinary course of business of the Company and exceeding the materiality threshold established by the Board from time to time;
(vii) making any material changes to or engaging in any business materially different from the Core Business, or ceasing any material existing business line or activities of the Company;
(viii) incurring any material indebtedness or assuming any material financial obligation exceeding the materiality threshold established by the Board from time to time and outside the ordinary course of business of the Company;
(ix) making any capital expenditures or investment in any other company exceeding US$400,000,000 or such other materiality threshold established by the Board from time to time;
(x) creating any encumbrance over the whole or part of the share capital, undertaking, material property or material assets of the Company or any material Subsidiary thereof, other than as permitted by the annual budget or the business and financial plan approved by the Board;
(xi) increasing or decreasing the authorized size of the Board; or
(xii) amending or waiving any provision of the Articles in a manner that would alter or change the rights, preferences or privileges of the Ordinary Shares.
(c) The Company shall not, and shall not permit any other Group Company to, make any changes to any of the Control Documents including any transfer or assignment of any party’s rights and obligations under any of the Control Documents and any appointment of representatives, specified persons or proxies under the Control Documents, except as contemplated in this Agreement or by the Tencent Transaction Documents, without first obtaining the approval (by vote or written consent, as provided by applicable Laws or the Articles) of the holders of at least 66.7% of the then total issued and outstanding Ordinary Shares of the Company.
(d) Without prejudice to Section 10.2(b) above, the Company shall not, and shall not permit any other Group Company to, carry out any of the following actions involving itself or any of its Subsidiaries without first obtaining the prior written approval of Tencent:
(i) any merger, consolidation, transfer of shares or other form of restructuring of the Company involving a Restricted Person;
(ii) any sale of encumber all or substantially all of the assets its property or business or merge with or into or consolidate with any other corporation (other than a merger of a wholly-owned subsidiary corporation with or into ESAN) or effect any transaction or series of related transactions in which more than fifty percent (50%) any of the Group Companies to a Restricted Person;
(iii) any issuance ownership and/or voting power of New Securities by the Company to any Restricted Person;
(iv) entering into any joint venture or partnership arrangement with a Restricted PersonESAN is disposed of; or
(vii) engaging in effect any business other than the Core Businessvoluntary liquidation, dissolution, bankruptcy or winding up of ESAN.
Appears in 1 contract
Protective Provisions. (a) The Company shall not sell or issue any New Securities without first obtaining the approval (by vote or written consent, as provided by applicable Laws or the Articles) of the Shareholders holding at least 66.7% of the then total issued and outstanding Ordinary Shares held by all Shareholders. The Company shall not sell or issue any New Securities at a purchase price that has a pre-money valuation of the Company of less than US$6 billion without first obtaining the approval (by vote or written consent, as provided by applicable Laws or the Articles) of the Shareholders holding at least 90% of the then total issued and outstanding Ordinary Shares held by all Shareholders.
(b) Without prejudice to Section 10.2(a) above, the Company shall not, and shall not permit any other applicable Group Company to, except as expressly permitted under this Agreement or in connection with any put right without the consent of a Shareholder as set forth in the applicable Subscription Agreements, carry out any of the following actions involving itself or any of its Subsidiaries as applicable without first obtaining the approval (by vote or written consent, as provided by applicable Laws or the Articles) of the Shareholders holding at least 66.7% of the then total issued and outstanding Ordinary Shares held by all Shareholderseach Shareholder:
(i) altering amend, alter or changing the rights, or privileges repeal any provision of the Ordinary Shares or creating (by reclassification or otherwise) Memorandum and Articles of Association in a manner that would adversely effect any new class or series of shares having rights, preferences or privileges senior to or on a parity with the Ordinary SharesShareholder;
(ii) reclassifying any outstanding Ordinary Shares into shares having rightssell, preferences transfer or privileges with respect lease, whether in a single transaction or pursuant to dividends a series of related transactions or assets senior to plan, all or on a parity with the Ordinary Shares;
(iii) declaring or paying any dividend or distribution or otherwise redeeming or repurchasing any issued and outstanding shares substantial portion of the Company;
(iv) making any acquisition, sale of control or assets, merger, consolidation, joint venture or partnership arrangements exceeding the materiality threshold established by the Board from time to time, except pursuant to the exercise of the Drag-Along Right;
(v) effecting an increase or reduction of the authorized share capital, split-off, spin-off, dissolution, liquidation, winding-up or bankruptcy of the Company or any material Subsidiary thereof (for the avoidance of doubt, issuance of any shares under the exceptional proviso of the definition of “New Securities” shall not be subject to such approvals);
(vi) selling, mortgaging, pledging, leasing, transferring, incurring a lien on or otherwise disposing of substantially all of its assets or any of the assets which are outside the ordinary course of business of the Company and exceeding the materiality threshold established by the Board from time to time;
(vii) making any material changes to or engaging in any business materially different from the Core Business, or ceasing any material existing business line or activities of the Company;
(viii) incurring any material indebtedness or assuming any material financial obligation exceeding the materiality threshold established by the Board from time to time and outside the ordinary course of business of the Company;
(ix) making any capital expenditures or investment in any other company exceeding US$400,000,000 or such other materiality threshold established by the Board from time to time;
(x) creating any encumbrance over the whole or part of the share capital, undertaking, material property or material assets of the Company or any of its material Subsidiary thereof, other than as permitted by the annual budget or the business and financial plan approved by the BoardSubsidiaries;
(xiiii) increasing effect a voluntary liquidation, dissolution or decreasing the authorized size winding up of the BoardCompany or any of its material Subsidiaries;
(iv) approve any merger, scheme of amalgamation or similar transaction in connection with which (i) the Shares held immediately prior to a transaction by a Shareholder will be diluted disproportionately to any other Shareholders (except where this arises in a transaction involving the issuance of Shares by the Company and a Shareholder has not exercised its pre-emptive rights set out in Article IV) or (ii) any Shareholder would not receive the same form of consideration as any other Shareholders; or
(xiiv) amending convert (by merger or waiving otherwise) the Company from an exempted company incorporated in the Cayman Islands with limited liability to any provision other entity, other than an entity with the same tax attributes in another jurisdiction.
(b) The Company shall not, without Supermajority Consent:
(i) appoint outside independent auditors for the Company or replace such auditors;
(ii) materially change the nature of the Articles in a manner that would alter or change the rights, preferences or privileges business of the Ordinary Company and its Subsidiaries; or
(iii) issue equity incentive awards (either in the form of options, restricted stock or other similar awards) to directors, officers or employees, which awards represent in the aggregate in excess of 10% of the outstanding Shares, calculated as of December 29, 2006 (giving effect to any stock splits, combinations or similar transactions effected after such date).
(c) The Company shall not, and shall not permit enter into any other Group Company to, make any changes to any Related Party Transaction unless approved by the Shareholders representing a majority of the Control Documents including outstanding Shares (other than those Shares Beneficially Owned by any transfer Shareholder who may have an interest (other than as a Shareholder) in such Related Party Transaction, either directly or assignment of any partyindirectly through such Shareholder’s rights and obligations under any of the Control Documents and any appointment of representatives, specified persons Affiliates or proxies under the Control Documents, except as contemplated in this Agreement or by the Tencent Transaction Documents, without first obtaining the approval (by vote or written consenta Significant Shareholder Debtor, as provided by applicable Laws or the Articles) of the holders of at least 66.7% of the then total issued and outstanding Ordinary Shares of the Companycase may be).
(d) Without prejudice The Company shall not redeem Capital Securities other than on a pro rata basis from every Shareholder holding such Capital Securities and the Company shall not redeem debt securities held by any Shareholder or any of its Affiliates, except as required by the Note Purchase Agreement or the terms of the Notes; provided that the foregoing shall not prohibit the redemption or repurchase of Capital Securities issued to Section 10.2(bdirectors, officers or employees of the Company, whether originally issued pursuant to an employee stock plan approved by the Board of Directors or otherwise, at a purchase price of not more than the fair market value of such Capital Securities at the time of the redemption or repurchase, as reasonably determined by the Board of Directors or any committee delegated by the Board of Directors.
(e) aboveEach Shareholder agrees (i) not to, and cause the Company, its Subsidiaries and its representatives not to, take any action that, directly or indirectly, will frustrate or circumvent the provisions of this Agreement, and (ii) to cause its representatives on the Board, consistent with their fiduciary obligations under applicable law, to act in the best interest of all members/shareholders and not individual shareholders/members.
(f) The Company shall only appoint a director, officer, manager or employee, including the determination of the terms on which such director, officer, manager or employee shall serve and any remuneration to be paid, on arms length terms or terms more favorable to the Company than arms length terms.
(g) As soon as reasonably practicable following the request of ▇▇▇▇▇▇▇, which request may be made at any time after ▇▇▇▇▇▇▇ ceases to own at least a majority of the outstanding Capital Securities, the Company shall not, and shall not permit any other Group Company to, carry out any of the following actions involving itself or any of its Subsidiaries without first obtaining the prior written approval of Tencent:
(i) cease, and cause its Affiliates to cease, to use the name “▇▇▇▇▇▇▇” or any mergerabbreviation of or derivation from that name or any name similar to it in any form whatsoever, consolidation, transfer including in respect of shares or other form of restructuring of the Company involving a Restricted Person;
advertising and promotional materials and (ii) any sale amend its memorandum and articles of all association or similar governing document to change its name to a name that does not contain the word “▇▇▇▇▇▇▇,” or substantially similar words. Each Shareholder shall take all necessary action, in its capacity as a shareholder of the assets of the Group Companies Company, to a Restricted Person;
(iii) any issuance of New Securities by cause the Company to any Restricted Person;
(iv) entering into any joint venture or partnership arrangement comply with a Restricted Person; or
(v) engaging in any business other than the Core Businessits obligations under this Section 7.4(h).
Appears in 1 contract
Sources: Shareholders Agreement (Aei)
Protective Provisions. (a) The Company shall not sell or issue 6.1 At any New Securities without first obtaining the approval (by vote or written consent, as provided by applicable Laws or the Articles) time when M▇ ▇▇▇▇▇▇ holds any shares of the Shareholders holding at least 66.7% of the then total issued and outstanding Ordinary Shares held by all Shareholders. The Company shall not sell or issue any New Securities at a purchase price that has a pre-money valuation of the Company of less than US$6 billion without first obtaining the approval (by vote or written consent, as provided by applicable Laws or the Articles) of the Shareholders holding at least 90% of the then total issued and outstanding Ordinary Shares held by all Shareholders.
(b) Without prejudice to Section 10.2(a) aboveTransfer Stock, the Company shall not, without the written consent or affirmative vote of each of N▇▇▇ and shall not permit M▇ ▇▇▇▇▇▇ (in addition to any other applicable Group Company tovote required by law or pursuant to the Amended Articles), except as expressly permitted under this Agreement either directly or in connection with any put right of a Shareholder as set forth in the applicable Subscription Agreements, carry out any of the following actions involving itself or any of its Subsidiaries as applicable without first obtaining the approval (indirectly whether by vote or written consent, as provided by applicable Laws or the Articles) of the Shareholders holding at least 66.7% of the then total issued and outstanding Ordinary Shares held by all Shareholders:
(i) altering or changing the rights, or privileges of the Ordinary Shares or creating (by reclassification or otherwise) any new class or series of shares having rights, preferences or privileges senior to or on a parity with the Ordinary Shares;
(ii) reclassifying any outstanding Ordinary Shares into shares having rights, preferences or privileges with respect to dividends or assets senior to or on a parity with the Ordinary Shares;
(iii) declaring or paying any dividend or distribution or otherwise redeeming or repurchasing any issued and outstanding shares of the Company;
(iv) making any acquisition, sale of control or assetsamendment, merger, consolidation, joint venture domestication, transfer, continuance, recapitalization, reclassification, waiver, statutory conversion, or partnership arrangements exceeding otherwise effect any of the materiality threshold established following acts or transactions (and any such act or transaction that has not been approved by such consent or vote prior to such act or transaction being effected shall be null and void ab initio, and of no force or effect):
(a) create or issue, or obligate itself to issue, shares of any Capital Stock to any Stockholder or any of its Affiliates or reclassify any Transfer Stock held by any Stockholder or any of its Affiliates unless the same ranks junior or pari passu to the Common Stock then held by the Board from time Stockholders with respect to timerights, except pursuant to preferences and privileges (the exercise of the Drag-Along Right“Reclassified Stock”);
(vb) effecting an increase cause any direct or reduction indirect subsidiary of the authorized share capitalCompany to issue, split-offor obligate such subsidiary to issue, spin-offany securities to any Stockholder or any of its Affiliates;
(c) issue, dissolutionor obligate itself to issue, liquidationany debt security to any Stockholder or any of its Affiliates or otherwise incur any indebtedness for borrowed money from any Stockholder or any of its Affiliates, windingor permit any subsidiary to take any such action with respect to any debt security or other indebtedness for borrowed money;
(d) effect a Sale of the Company to any Stockholder or any of its Affiliates the effect of which results in such Stockholder or any of its Affiliates owning all outstanding Transfer Stock held by any other Stockholders (or otherwise squeezing out any other Stockholders) or which is otherwise not in compliance with the terms of this Agreement;
(e) change the number of votes entitled to be cast by any director or directors on any matter;
(f) purchase or redeem (or permit any subsidiary to purchase or redeem) any Transfer Shares held by any Stockholder or its Affiliates;
(g) pay or declare any dividend or make any distribution on any shares of Reclassified Stock unless a corresponding dividend or distribution is made on the Common Stock at the same time;
(h) liquidate, dissolve or wind-up or bankruptcy the business and affairs of the Company or any material Subsidiary thereof (for the avoidance of doubt, issuance of any shares under the exceptional proviso of the definition of “New Securities” shall not be subject to such approvals);
(vi) selling, mortgaging, pledging, leasing, transferring, incurring a lien on or otherwise disposing of substantially all of its assets or any of the assets which are outside the ordinary course of business of the Company and exceeding the materiality threshold established by the Board from time to time;
(vii) making any material changes to or engaging in any business materially different from the Core Business, or ceasing any material existing business line or activities subsidiary of the Company;
(viii) incurring any material indebtedness or assuming any material financial obligation exceeding the materiality threshold established by the Board from time to time and outside the ordinary course of business of the Company;
(ix) making any capital expenditures or investment in any other company exceeding US$400,000,000 or such other materiality threshold established by the Board from time to time;
(x) creating any encumbrance over the whole or part of the share capital, undertaking, material property or material assets of the Company or any material Subsidiary thereof, other than as permitted by the annual budget or the business and financial plan approved by the Board;
(xi) increasing or decreasing the authorized size of the Board; or
(xiii) amending enter into any agreement, or waiving any provision of the Articles in a manner that would alter or change the rightsotherwise commit, preferences or privileges of the Ordinary Shares.
(c) The Company shall not, and shall not permit any other Group Company to, make any changes to do any of the Control Documents including any transfer or assignment of any party’s rights and obligations under any of the Control Documents and any appointment of representatives, specified persons or proxies under the Control Documents, except as contemplated in this Agreement or by the Tencent Transaction Documents, without first obtaining the approval (by vote or written consent, as provided by applicable Laws or the Articles) of the holders of at least 66.7% of the then total issued and outstanding Ordinary Shares of the Companyforegoing.
(d) Without prejudice to Section 10.2(b) above, the Company shall not, and shall not permit any other Group Company to, carry out any of the following actions involving itself or any of its Subsidiaries without first obtaining the prior written approval of Tencent:
(i) any merger, consolidation, transfer of shares or other form of restructuring of the Company involving a Restricted Person;
(ii) any sale of all or substantially all of the assets of the Group Companies to a Restricted Person;
(iii) any issuance of New Securities by the Company to any Restricted Person;
(iv) entering into any joint venture or partnership arrangement with a Restricted Person; or
(v) engaging in any business other than the Core Business.
Appears in 1 contract
Protective Provisions. Until the earlier of (ax) The Company shall not sell or issue any New Securities without first obtaining the approval (by vote or written consent, as provided by applicable Laws or the Articles) of the Shareholders holding at least 66.7% of the then total issued and outstanding Ordinary Shares held by all Shareholders. The Company shall not sell or issue any New Securities at a purchase price that has a pre-money valuation of the Company of date on which less than US$6 billion without first obtaining 293,750 shares of Series 1/2/3 Preferred Stock are outstanding, (y) the approval Series 1 Transition Date, and (by vote or written consent, as provided by applicable Laws or z) the Articles) effective date of the Shareholders holding at least 90% of the then total issued and outstanding Ordinary Shares held by all Shareholders.
(b) Without prejudice to Section 10.2(a) abovea Deemed Liquidation, the Company Corporation shall not, and shall not permit any other applicable Group Company to, except as expressly permitted under this Agreement or in connection with any put right of a Shareholder as set forth in the applicable Subscription Agreements, carry out any of the following actions involving itself or any of its Subsidiaries as applicable to, directly or indirectly, without first obtaining the approval affirmative vote (by vote or written consentconsent as permitted by the DGCL, as provided by applicable Laws or the ArticlesCertificate of Incorporation and Bylaws) of the Shareholders holding at least 66.7% of the then total issued and outstanding Ordinary Shares held by all ShareholdersRequisite Holders, voting (or consenting) as a separate class:
(i) altering amend, alter, modify or changing repeal (whether by merger, consolidation or otherwise) this Certificate of Designations, the Certificate of Incorporation or the Bylaws in any manner that adversely affects the rights, preferences, privileges or privileges of the Ordinary Shares or creating (by reclassification or otherwise) any new class or series of shares having rightsrestrictions provided for the benefit of, preferences or privileges senior to or on a parity with the Ordinary SharesSeries 1/2/3 Preferred Stock;
(ii) reclassifying authorize, create, designate, issue or sell any outstanding Ordinary Shares into (A) class or series of capital stock (including shares having of treasury stock) that would be classified as Senior Securities or Parity Securities or (B) rights, preferences options, warrants or privileges with respect other securities (including debt securities) convertible into or exercisable or exchangeable for capital stock or any equity security or having any other equity feature, in each case, that would be classified as either Senior Securities or Parity Securities, except as pursuant to dividends the conversion or assets senior exercise of securities issued and outstanding as of the Initial Issue Date of the Series 1 Preferred Stock or pursuant to any agreement in effect on or on a parity with prior to the Ordinary SharesInitial Issue Date of the Series 1 Preferred Stock;
(iii) declaring purchase or paying redeem (or permit any dividend subsidiary to purchase or redeem) or pay or declare any dividend, or make any distribution or otherwise redeeming or repurchasing on, any issued and outstanding shares of capital stock of the Company;Corporation, other than redemptions of or dividends or distributions on the Series 1/2/3 Preferred Stock as expressly authorized herein; or
(iv) making enter into any acquisition, sale of control or assets, merger, consolidation, joint venture or partnership arrangements exceeding the materiality threshold established by the Board from time agreement to time, except pursuant to the exercise of the Drag-Along Right;
(v) effecting an increase or reduction of the authorized share capital, split-off, spin-off, dissolution, liquidation, winding-up or bankruptcy of the Company or any material Subsidiary thereof (for the avoidance of doubt, issuance of any shares under the exceptional proviso of the definition of “New Securities” shall not be subject to such approvals);
(vi) selling, mortgaging, pledging, leasing, transferring, incurring a lien on or otherwise disposing of substantially all of its assets or do any of the assets which are outside the ordinary course of business of the Company and exceeding the materiality threshold established by the Board from time to time;
(vii) making any material changes to or engaging in any business materially different from the Core Business, or ceasing any material existing business line or activities of the Company;
(viii) incurring any material indebtedness or assuming any material financial obligation exceeding the materiality threshold established by the Board from time to time and outside the ordinary course of business of the Company;
(ix) making any capital expenditures or investment in any other company exceeding US$400,000,000 or such other materiality threshold established by the Board from time to time;
(x) creating any encumbrance over the whole or part of the share capital, undertaking, material property or material assets of the Company or any material Subsidiary thereof, other than as permitted by the annual budget or the business and financial plan approved by the Board;
(xi) increasing or decreasing the authorized size of the Board; or
(xii) amending or waiving any provision of the Articles in a manner foregoing that would alter or change the rights, preferences or privileges of the Ordinary Shares.
(c) The Company shall not, and shall is not permit any other Group Company to, make any changes to any of the Control Documents including any transfer or assignment of any party’s rights and obligations under any of the Control Documents and any appointment of representatives, specified persons or proxies under the Control Documents, except as contemplated in this Agreement or by the Tencent Transaction Documents, without first expressly made conditional on obtaining the approval (by affirmative vote or written consent, as provided by applicable Laws or the Articles) consent of the holders of at least 66.7% of the then total issued and outstanding Ordinary Shares of the CompanyRequisite Holders.
(d) Without prejudice to Section 10.2(b) above, the Company shall not, and shall not permit any other Group Company to, carry out any of the following actions involving itself or any of its Subsidiaries without first obtaining the prior written approval of Tencent:
(i) any merger, consolidation, transfer of shares or other form of restructuring of the Company involving a Restricted Person;
(ii) any sale of all or substantially all of the assets of the Group Companies to a Restricted Person;
(iii) any issuance of New Securities by the Company to any Restricted Person;
(iv) entering into any joint venture or partnership arrangement with a Restricted Person; or
(v) engaging in any business other than the Core Business.
Appears in 1 contract
Sources: Securities Purchase Agreement (Bellicum Pharmaceuticals, Inc)
Protective Provisions. So long as any shares of Series A Preferred Stock are outstanding, the Corporation shall not, nor shall it permit any of its subsidiaries to, take any of the following corporate actions (awhether by merger, consolidation or otherwise) The Company shall not sell or issue any New Securities without first obtaining the approval (by vote or written consent, as provided by applicable Laws or the Articles) of the Shareholders holding at least 66.7% Holders of a majority of the then total issued and outstanding Ordinary Shares held by all Shareholders. The Company shall not sell or issue any New Securities at a purchase price that has a pre-money valuation of Series A Preferred Stock (the Company of less than US$6 billion without first obtaining the approval (by vote or written consent, as provided by applicable Laws or the Articles) of the Shareholders holding at least 90% of the then total issued and outstanding Ordinary Shares held by all Shareholders.“Majority Holders”):
(b) Without prejudice to Section 10.2(a) above, the Company shall not, and shall not permit any other applicable Group Company to, except as expressly permitted under this Agreement or in connection with any put right of a Shareholder as set forth in the applicable Subscription Agreements, carry out any of the following actions involving itself or any of its Subsidiaries as applicable without first obtaining the approval (by vote or written consent, as provided by applicable Laws or the Articles) of the Shareholders holding at least 66.7% of the then total issued and outstanding Ordinary Shares held by all Shareholders:
(i) altering or changing the rights, or privileges of the Ordinary Shares or creating (by reclassification or otherwise) any new class or series of shares having rights, preferences or privileges senior to or on a parity with the Ordinary Shares;
(ii) reclassifying any outstanding Ordinary Shares into shares having rights, preferences or privileges with respect to dividends or assets senior to or on a parity with the Ordinary Shares;
(iii) declaring or paying any dividend or distribution or otherwise redeeming or repurchasing any issued and outstanding shares of the Company;
(iv) making any acquisition, sale of control or assets, merger, consolidation, joint venture or partnership arrangements exceeding the materiality threshold established by the Board from time to time, except pursuant to the exercise of the Drag-Along Right;
(v) effecting an increase or reduction of the authorized share capital, split-off, spin-off, dissolution, liquidation, winding-up or bankruptcy of the Company or any material Subsidiary thereof (for the avoidance of doubt, issuance of any shares under the exceptional proviso of the definition of “New Securities” shall not be subject to such approvals);
(vi) selling, mortgaging, pledging, leasing, transferring, incurring a lien on or otherwise disposing of substantially all of its assets or any of the assets which are outside the ordinary course of business of the Company and exceeding the materiality threshold established by the Board from time to time;
(vii) making any material changes to or engaging in any business materially different from the Core Business, or ceasing any material existing business line or activities of the Company;
(viii) incurring any material indebtedness or assuming any material financial obligation exceeding the materiality threshold established by the Board from time to time and outside the ordinary course of business of the Company;
(ix) making any capital expenditures or investment in any other company exceeding US$400,000,000 or such other materiality threshold established by the Board from time to time;
(x) creating any encumbrance over the whole or part of the share capital, undertaking, material property or material assets of the Company or any material Subsidiary thereof, other than as permitted by the annual budget or the business and financial plan approved by the Board;
(xi) increasing or decreasing the authorized size of the Board; or
(xii) amending or waiving any provision of the Articles in a manner that would 10.1 alter or change the rights, preferences or privileges of the Ordinary Shares.Series A Preferred Stock, including by way of an amendment to the Corporation’s Articles of Incorporation, or increase the authorized number of shares of Series A Preferred Stock;
(c) The Company shall not, and shall not permit 10.2 issue any shares of Series A Preferred Stock other than pursuant to the Purchase Agreement;
10.3 increase or decrease the authorized number of Series A Preferred Stock;
10.4 authorize or designate any new class or series of stock or any other Group Company to, make any changes to any securities convertible into equity securities of the Control Documents including Corporation ranking on a parity with or senior to the Series A Preferred Stock in right of redemption, liquidation preference, voting or dividend rights if the highest price per share payable by purchasers of such securities is less than the Stated Value;
10.5 changes the number of directors from the current number;
10.6 redeem, purchase or otherwise acquire (or pay into or set aside for a sinking fund for such purpose) any transfer share or assignment shares of any party’s rights and obligations under any of the Control Documents and any appointment of representatives, specified persons Series A Preferred Stock or proxies under the Control Documents, except as contemplated in this Agreement or by the Tencent Transaction Documents, without first obtaining the approval (by vote or written consent, as provided by applicable Laws or the Articles) of the holders of at least 66.7% of the then total issued and outstanding Ordinary Shares of the Company.Common Stock;
(d) Without prejudice to Section 10.2(b) above, the Company shall not, and shall not permit any other Group Company to, carry out any of the following actions involving itself or any of its Subsidiaries without first obtaining the prior written approval of Tencent:
(i) 10.7 approve any merger, consolidationasset sale, transfer of shares liquidation or other form of restructuring of corporate reorganization or acquisition. Notwithstanding the Company involving a Restricted Person;
(ii) any sale of all or substantially foregoing, no change pursuant to this Section 10 shall be effective to the extent that, by its terms, it applies to less than all of the assets Holders of the Group Companies to a Restricted Person;
(iii) any issuance shares of New Securities by the Company to any Restricted Person;
(iv) entering into any joint venture or partnership arrangement with a Restricted Person; or
(v) engaging in any business other than the Core BusinessSeries A Preferred Stock then outstanding.
Appears in 1 contract
Sources: Certificate of Designation (Sino-Global Shipping America, Ltd.)
Protective Provisions. (a) The Company shall not sell or issue At any New Securities without first obtaining time that any Deferred Merger Consideration is outstanding and owed by Parent to the approval (by vote or written consentEquityholders, as provided by applicable Laws or the Articles) Parent hereby covenants and agrees with each of the Shareholders holding at least 66.7% of the then total issued and outstanding Ordinary Shares held by all Shareholders. The Company shall not sell or issue any New Securities at a purchase price Equityholders that has a pre-money valuation of the Company of less than US$6 billion without first obtaining the approval (by vote or written consent, as provided by applicable Laws or the Articles) of the Shareholders holding at least 90% of the then total issued and outstanding Ordinary Shares held by all Shareholders.
(b) Without prejudice to Section 10.2(a) above, the Company it shall not, and shall cause its affiliates (including its subsidiaries) not permit any other applicable Group Company to, except as expressly permitted under this Agreement without approval of the Stockholders’ Representative:
a. effect any merger, acquisition or business combination (in one transaction or in connection a series of transactions) in excess of $3,000,000.
b. declare or make, or agree to declare or make, directly or indirectly, any dividend or other distribution (whether in cash, securities or other property) with respect to the equity interests of Parent or its subsidiaries, or any put right of a Shareholder as set forth payment (whether in the applicable Subscription Agreementscash, carry out securities or other property), including any sinking fund or similar deposit, on account of the following actions involving itself purchase, redemption, retirement, acquisition, cancellation or termination of any such equity interests or any of its Subsidiaries as applicable without first obtaining the approval (by vote option, warrant or written consent, as provided by applicable Laws or the Articles) of the Shareholders holding at least 66.7% of the then total issued and outstanding Ordinary Shares held by all Shareholders:
(i) altering or changing the rightsother right to acquire any such equity interests, or privileges of the Ordinary Shares or creating incur any obligation (by reclassification contingent or otherwise) to do so.
c. sell, transfer, lease or otherwise dispose of any new class material assets (in one transaction or in a series of shares having rights, preferences or privileges senior to or on a parity with the Ordinary Shares;
(iitransactions) reclassifying any outstanding Ordinary Shares into shares having rights, preferences or privileges with respect to dividends or assets senior to or on a parity with the Ordinary Shares;
(iii) declaring or paying any dividend or distribution or otherwise redeeming or repurchasing any issued and outstanding shares in excess of the Company;
(iv) making any acquisition, sale of control or assets, merger, consolidation, joint venture or partnership arrangements exceeding the materiality threshold established by the Board from time to time$3,000,000, except pursuant for sales, transfers and dispositions made to the exercise of the Dragnon-Along Right;
(v) effecting an increase or reduction of the authorized share capital, split-off, spin-off, dissolution, liquidation, winding-up or bankruptcy of the Company or any material Subsidiary thereof (for the avoidance of doubt, issuance of any shares under the exceptional proviso of the definition of “New Securities” shall not be subject to such approvals);
(vi) selling, mortgaging, pledging, leasing, transferring, incurring a lien on or otherwise disposing of substantially all of its assets or any of the assets which are outside affiliates in the ordinary course of business of the Company and exceeding the materiality threshold established by the Board from time business.
d. create, incur, assume or permit to time;
(vii) making exist any material changes to or engaging in any business materially different from the Core Business, or ceasing any material existing business line or activities of the Company;
(viii) incurring any material indebtedness or assuming any material financial obligation exceeding the materiality threshold established by the Board from time to time and outside the ordinary course of business of the Company;
(ix) making any capital expenditures or investment in any other company exceeding US$400,000,000 or such other materiality threshold established by the Board from time to time;
(x) creating any encumbrance over the whole or part of the share capital, undertaking, material property or material assets of the Company or any material Subsidiary thereoflien, other than as permitted by the annual budget or the business and financial plan approved by the Board;
(xi) increasing or decreasing the authorized size of the Board; or
(xii) amending or waiving any provision of the Articles in a manner that would alter or change the rightsPermitted Encumbrances, preferences or privileges of the Ordinary Shares.
(c) The Company shall not, and shall not permit any other Group Company to, make any changes to any of the Control Documents including any transfer or assignment of any party’s rights and obligations under any of the Control Documents and any appointment of representatives, specified persons or proxies under the Control Documents, except as contemplated in this Agreement or by the Tencent Transaction Documents, without first obtaining the approval (by vote or written consent, as provided by applicable Laws or the Articles) of the holders of at least 66.7% of the then total issued and outstanding Ordinary Shares of the Company.
(d) Without prejudice to Section 10.2(b) above, the Company shall not, and shall not permit any other Group Company to, carry out any of the following actions involving itself or any of its Subsidiaries without first obtaining the prior written approval of Tencent:
on (i) any mergerproperty or asset now owned or hereafter acquired by it or its subsidiaries, consolidation, transfer or assign or sell any income or revenues (including Accounts) or rights in respect of shares any thereof or other form of restructuring of the Company involving a Restricted Person;
(ii) the equity interests in any subsidiaries of Parent.
e. Notwithstanding Section 7(a) and Section 7(c), Parent and its affiliates (including its subsidiaries) shall not be required to obtain the prior approval of Stockholders Representative to consummate an underwritten initial public offering, direct listing, or sale of all at least a majority of assets or substantially all of the assets equity (by way of the Group Companies merger, acquisition, sale or other method of disposition), in each case, with respect to a Restricted Person;
(iii) any issuance of New Securities by the Company to any Restricted Person;
(iv) entering into any joint venture or partnership arrangement with a Restricted Person; or
(v) engaging in any business other than the Core BusinessBlink Mobility, LLC.
Appears in 1 contract
Protective Provisions. (a) The Company In addition to any other class vote that may be required by law, this Corporation shall not sell or issue any New Securities without first obtaining the approval (by vote or written consent, as provided by applicable Laws or the Articleslaw) of the Shareholders holding holders of at least 66.7a majority of the then outstanding shares of Preferred Stock:
(i) sell, convey or otherwise dispose of all or substantially all of its property or business, or merge into or effect a reorganization with any other corporation (other than a wholly owned subsidiary corporation) in which the shareholders of this Corporation immediately prior to the transaction possess less than 50% of the then total voting power of the surviving entity (or its parent) immediately after the transaction, or sell the capital stock of the Corporation where the shareholders of this Corporation immediately prior to the transaction possess less than 50% of the voting power of the Corporation immediately after the transaction;
(ii) change the rights, preferences, privileges or restrictions of the Preferred Stock;
(iii) increase or decrease the aggregate number of authorized shares of Preferred Stock, other than as provided in either subdivision (b) of Section 405 or subdivision (c) of Section 902 of the California Corporations Code;
(iv) create a new class or series of shares having rights, preferences or privileges or increase the number of authorized shares of any class or shares having rights, preferences or privileges equal to or senior to any outstanding class or series;
(v) pay any dividend on or purchase, redeem or otherwise acquire any security junior to the Preferred Stock other than repurchases at cost from employees, consultants, lessors or suppliers upon termination of employment, consulting, lessor-lessee, or supplier-purchaser relationship, respectively; or
(vi) voluntarily dissolve or liquidate the Corporation.
(b) Notwithstanding the foregoing Section 6(a), in addition to any other series vote that may be required by law, so long as 40% of the originally issued and outstanding Ordinary Shares held by all Shareholders. The Company Series C Preferred are outstanding, this Corporation shall not sell or issue any New Securities at a purchase price that has a pre-money valuation of the Company of less than US$6 billion without first obtaining the approval (by vote or written consent, as provided by applicable Laws or the Articleslaw) of the Shareholders holding holders of at least 90a majority of the then outstanding shares of Series C Preferred:
(i) materially adversely change the rights, preferences, privileges or restrictions of the Series C Preferred;
(ii) increase or decrease the aggregate number of authorized shares of Series C Preferred, other than as provided in either subdivision (b) of Section 405 or subdivision (c) of Section 902 of the California Corporations Code; and
(iii) create a new class or series of shares having rights, preferences or privileges senior to the Series C Preferred.
(c) Notwithstanding the foregoing Sections 6(a) and 6(b), in addition to any other series vote that may be required by law, so long as 40% of the then total originally issued and outstanding Ordinary Shares held by all Shareholders.
(b) Without prejudice to Section 10.2(a) aboveSeries C Preferred are outstanding, the Company shall not, and this Corporation shall not permit any other applicable Group Company to, except as expressly permitted under this Agreement or in connection with any put right of a Shareholder as set forth in the applicable Subscription Agreements, carry out any of the following actions involving itself or any of its Subsidiaries as applicable without first obtaining the approval (by vote or written consent, as provided by applicable Laws or the Articles) of the Shareholders holding at least 66.7% of the then total issued and outstanding Ordinary Shares held by all Shareholders:
(i) altering or changing the rights, or privileges of the Ordinary Shares or creating (by reclassification or otherwise) any new class or series of shares having rights, preferences or privileges senior to or on a parity with the Ordinary Shares;
(ii) reclassifying any outstanding Ordinary Shares into shares having rights, preferences or privileges with respect to dividends or assets senior to or on a parity with the Ordinary Shares;
(iii) declaring or paying any dividend or distribution or otherwise redeeming or repurchasing any issued and outstanding shares of the Company;
(iv) making any acquisition, sale of control or assets, merger, consolidation, joint venture or partnership arrangements exceeding the materiality threshold established by the Board from time to time, except pursuant to the exercise of the Drag-Along Right;
(v) effecting an increase or reduction of the authorized share capital, split-off, spin-off, dissolution, liquidation, winding-up or bankruptcy of the Company or any material Subsidiary thereof (for the avoidance of doubt, issuance of any shares under the exceptional proviso of the definition of “New Securities” shall not be subject to such approvals);
(vi) selling, mortgaging, pledging, leasing, transferring, incurring a lien on or otherwise disposing of substantially all of its assets or any of the assets which are outside the ordinary course of business of the Company and exceeding the materiality threshold established by the Board from time to time;
(vii) making any material changes to or engaging in any business materially different from the Core Business, or ceasing any material existing business line or activities of the Company;
(viii) incurring any material indebtedness or assuming any material financial obligation exceeding the materiality threshold established by the Board from time to time and outside the ordinary course of business of the Company;
(ix) making any capital expenditures or investment in any other company exceeding US$400,000,000 or such other materiality threshold established by the Board from time to time;
(x) creating any encumbrance over the whole or part of the share capital, undertaking, material property or material assets of the Company or any material Subsidiary thereof, other than as permitted by the annual budget or the business and financial plan approved by the Board;
(xi) increasing or decreasing the authorized size of the Board; or
(xii) amending or waiving any provision of the Articles in a manner that would alter or change the rights, preferences or privileges of the Ordinary Shares.
(c) The Company shall not, and shall not permit any other Group Company to, make any changes to any of the Control Documents including any transfer or assignment of any party’s rights and obligations under any of the Control Documents and any appointment of representatives, specified persons or proxies under the Control Documents, except as contemplated in this Agreement or by the Tencent Transaction Documents, without first obtaining the approval (by vote or written consent, as provided by applicable Laws or the Articleslaw) of the holders of at least 66.766 2/3% of the then total issued and outstanding Ordinary Shares shares of Series C Preferred, voluntarily dissolve or liquidate, sell, convey or otherwise dispose of all or substantially all of its property or business, or merge into or effect a reorganization with any other corporation (other than a wholly owned subsidiary corporation) in which the shareholders of this Corporation immediately prior to the transaction possess less than 50% of the Company.
(d) Without prejudice to Section 10.2(b) above, the Company shall not, and shall not permit any other Group Company to, carry out any voting power of the following actions involving itself surviving entity (or any of its Subsidiaries without first obtaining parent) immediately after the prior written approval of Tencent:
(i) any merger, consolidation, transfer of shares or other form of restructuring transaction if the consideration received by the holders of the Company involving Series C Preferred as a Restricted Person;
(ii) result of any such liquidation, dissolution, merger or sale of all or substantially all of the assets of the Group Companies Corporation is less than $2.50 per share (as adjusted for any stock dividends, combinations, splits, recapitalizations and the like with respect to a Restricted Person;such shares)
(iiid) Unless otherwise required by California law or except as provided herein, the holders of Common Stock will not have the right to vote as a separate class on any issuance of New Securities by the Company to any Restricted Person;
(iv) entering into any joint venture or partnership arrangement with a Restricted Person; or
(v) engaging in any business other than the Core Businessmatter.
Appears in 1 contract
Sources: Series C Convertible Preferred Stock Purchase Agreement (Inventa Technologies Inc)
Protective Provisions. (a) The Company shall not sell or issue any New Securities without first obtaining the approval (by vote or written consent, as provided by applicable Laws or the Articles) of the Shareholders holding at least 66.7% of the then total issued and outstanding Ordinary Shares held by all Shareholders. The Company shall not sell or issue any New Securities at a purchase price that has a pre-money valuation of the Company of less than US$6 billion without first obtaining the approval (by vote or written consent, as provided by applicable Laws or the Articles) of the Shareholders holding at least 90% of the then total issued and outstanding Ordinary Shares held by all Shareholders.
(b) Without prejudice to Section 10.2(a) above, the Company shall not, and shall not permit any other applicable Group Company to, except as expressly permitted under this Agreement or in connection with any put right without the consent of a Shareholder as set forth in the applicable Subscription Agreements, carry out any of the following actions involving itself or any of its Subsidiaries as applicable without first obtaining the approval (by vote or written consent, as provided by applicable Laws or the Articles) of the Shareholders holding at least 66.7% of the then total issued and outstanding Ordinary Shares held by all Shareholders:
each Shareholder: (i) altering amend, alter or changing the rights, or privileges repeal any provision of the Ordinary Shares or creating (by reclassification or otherwise) Memorandum and Articles of Association in a manner that would adversely effect any new class or series of shares having rights, preferences or privileges senior to or on a parity with the Ordinary Shares;
Shareholder; (ii) reclassifying any outstanding Ordinary Shares into shares having rightssell, preferences transfer or privileges with respect lease, whether in a single transaction or pursuant to dividends a series of related transactions or assets senior to plan, all or on a parity with the Ordinary Shares;
(iii) declaring or paying any dividend or distribution or otherwise redeeming or repurchasing any issued and outstanding shares substantial portion of the Company;
(iv) making any acquisition, sale of control or assets, merger, consolidation, joint venture or partnership arrangements exceeding the materiality threshold established by the Board from time to time, except pursuant to the exercise of the Drag-Along Right;
(v) effecting an increase or reduction of the authorized share capital, split-off, spin-off, dissolution, liquidation, winding-up or bankruptcy of the Company or any material Subsidiary thereof (for the avoidance of doubt, issuance of any shares under the exceptional proviso of the definition of “New Securities” shall not be subject to such approvals);
(vi) selling, mortgaging, pledging, leasing, transferring, incurring a lien on or otherwise disposing of substantially all of its assets or any of the assets which are outside the ordinary course of business of the Company and exceeding the materiality threshold established by the Board from time to time;
(vii) making any material changes to or engaging in any business materially different from the Core Business, or ceasing any material existing business line or activities of the Company;
(viii) incurring any material indebtedness or assuming any material financial obligation exceeding the materiality threshold established by the Board from time to time and outside the ordinary course of business of the Company;
(ix) making any capital expenditures or investment in any other company exceeding US$400,000,000 or such other materiality threshold established by the Board from time to time;
(x) creating any encumbrance over the whole or part of the share capital, undertaking, material property or material assets of the Company or any of its material Subsidiary thereofSubsidiaries; (iii) effect a voluntary liquidation, dissolution or winding up of the Company or any of its material Subsidiaries; (iv) approve any merger, scheme of amalgamation or similar transaction in connection with which (i) the Shares held immediately prior to a transaction by a Shareholder will be diluted disproportionately to any other Shareholders (except where this arises in a transaction involving the issuance of Shares by the Company and a Shareholder has not exercised its pre-emptive rights set out in Article IV) or (ii) any Shareholder would not receive the same form of consideration as any other Shareholders; or (v) convert (by merger or otherwise) the Company from an exempted company incorporated in the Cayman Islands with limited liability to any other entity, other than as permitted by an entity with the annual budget same tax attributes in another jurisdiction.
(b) The Company shall not, without Supermajority Consent: (i) appoint outside independent auditors for the Company or replace such auditors; (ii) materially change the nature of the business and financial plan approved by the Board;
(xi) increasing or decreasing the authorized size of the BoardCompany and its Subsidiaries; or
or (xiiiii) amending issue equity incentive awards (either in the form of options, restricted stock or waiving any provision other similar awards) to directors, officers or employees, which awards represent in the aggregate in excess of 10% of the Articles in a manner that would alter outstanding Shares, calculated as of December 29, 2006 (giving effect to any stock splits, combinations or change the rights, preferences or privileges of the Ordinary Sharessimilar transactions effected after such date).
(c) The Company shall not, and shall not permit enter into any other Group Company to, make any changes to any Related Party Transaction unless approved by the Shareholders representing a majority of the Control Documents including outstanding Shares (other than those Shares Beneficially Owned by any transfer Shareholder who may have an interest (other than as a Shareholder) in such Related Party Transaction, either directly or assignment of any partyindirectly through such Shareholder’s rights and obligations under any of the Control Documents and any appointment of representatives, specified persons Affiliates or proxies under the Control Documents, except as contemplated in this Agreement or by the Tencent Transaction Documents, without first obtaining the approval (by vote or written consenta Significant Shareholder Debtor, as provided by applicable Laws or the Articles) of the holders of at least 66.7% of the then total issued and outstanding Ordinary Shares of the Companycase may be).
(d) Without prejudice The Company shall not redeem Capital Securities other than on a pro rata basis from every Shareholder holding such Capital Securities and the Company shall not redeem debt securities held by any Shareholder or any of its Affiliates, except as required by the Note Purchase Agreement or the terms of the Notes; provided that the foregoing shall not prohibit the redemption or repurchase of Capital Securities issued to Section 10.2(bdirectors, officers or employees of the Company, whether originally issued
(e) aboveEach Shareholder agrees (i) not to, and cause the Company, its Subsidiaries and its representatives not to, take any action that, directly or indirectly, will frustrate or circumvent the provisions of this Agreement, and (ii) to cause its representatives on the Board, consistent with their fiduciary obligations under applicable law, to act in the best interest of all members/shareholders and not individual shareholders/members.
(f) The Company shall only appoint a director, officer, manager or employee, including the determination of the terms on which such director, officer, manager or employee shall serve and any remuneration to be paid, on arms length terms or terms more favorable to the Company than arms length terms.
(g) As soon as reasonably practicable following the request of ▇▇▇▇▇▇▇, which request may be made at any time after ▇▇▇▇▇▇▇ ceases to own at least a majority of the outstanding Capital Securities, the Company shall not, and shall not permit any other Group Company to, carry out any of the following actions involving itself or any of its Subsidiaries without first obtaining the prior written approval of Tencent:
(i) cease, and cause its Affiliates to cease, to use the name “▇▇▇▇▇▇▇” or any mergerabbreviation of or derivation from that name or any name similar to it in any form whatsoever, consolidation, transfer including in respect of shares or other form of restructuring of the Company involving a Restricted Person;
advertising and promotional materials and (ii) any sale amend its memorandum and articles of all association or similar governing document to change its name to a name that does not contain the word “▇▇▇▇▇▇▇,” or substantially similar words. Each Shareholder shall take all necessary action, in its capacity as a shareholder of the assets of the Group Companies Company, to a Restricted Person;
(iii) any issuance of New Securities by cause the Company to any Restricted Person;
(iv) entering into any joint venture or partnership arrangement comply with a Restricted Person; or
(v) engaging in any business other than the Core Businessits obligations under this Section 7.4(h).
Appears in 1 contract
Sources: Shareholder Agreement
Protective Provisions. (a) The Company shall not sell not, either directly or issue indirectly by amendment, merger, consolidation or otherwise, do any New Securities without first obtaining the approval (by vote or written consent, as provided by applicable Laws or the Articles) of the Shareholders holding following without (in addition to any other vote required by the LLC Law or this Agreement) the written consent or affirmative vote of the holders of at least 66.775% of the then total issued and outstanding Ordinary Shares held Voting Preferred Units (including in such supermajority each Member or stockholder of Holdco which at the time is a Significant Securityholder), given in writing or by all Shareholders. The Company shall not sell or issue any New Securities vote at a purchase price that has a pre-money valuation of the Company of less than US$6 billion without first obtaining the approval (by vote or written consent, as provided by applicable Laws or the Articles) of the Shareholders holding at least 90% of the then total issued and outstanding Ordinary Shares held by all Shareholders.
(b) Without prejudice to Section 10.2(a) above, the Company shall notmeeting, and any such act or transaction entered into without such consent or vote shall not permit any other applicable Group Company tohe null and void ab initio, except as expressly permitted under this Agreement and of no force or in connection with any put right of a Shareholder as set forth in the applicable Subscription Agreements, carry out any of the following actions involving itself or any of its Subsidiaries as applicable without first obtaining the approval (by vote or written consent, as provided by applicable Laws or the Articles) of the Shareholders holding at least 66.7% of the then total issued and outstanding Ordinary Shares held by all Shareholderseffect:
(i) altering amend or changing the rights, repeal any provision of this Agreement or privileges other organizational documents of the Ordinary Shares Company;
(ii) authorize or creating (by reclassification or otherwise) issue any new class or series of shares Equity Security having rightsany right, preferences preference or privileges senior priority superior to or on a parity with the Ordinary Shares;
(ii) reclassifying any outstanding Ordinary Shares into shares having rights, preferences or privileges with respect to dividends or assets senior to or on a parity with the Ordinary SharesSeries B Preferred Units;
(iii) declaring or paying any dividend or distribution or otherwise redeeming or repurchasing any except (A) with respect to the adjustments set forth in Section 2.1 and (B) in connection with the issuance of one Common Unit to Holdco in respect of each share of Common Stock issued and outstanding by Holdco pursuant to Holdco’s 2011 Equity Incentive Plan, up to a maximum number of such Common Units equal to 2,285,317 minus the number of shares of Common Stock of Holdco outstanding as of the CompanyEffective Date (provided that (i) the foregoing maximum shall be increased to the extent that any shares of Common Stock of Holdco outstanding as of the Effective Date are repurchased by Holdco and (ii) any such Units issued in respect of shares of Common Stock repurchased by Holdco shall not be counted toward such maximum number unless and until such shares are re-granted) in accordance with the terms of the Master Rights Agreement;
(iv) making any acquisitionredeem, sale of control retire, purchase or assetsacquire, mergerdirectly or indirectly, consolidation, joint venture or partnership arrangements exceeding the materiality threshold established by the Board from time to time, except pursuant Units (other than with respect to the exercise recovery of Common Units from Holdco upon (A) the repurchase or forfeiture of Common Stock issued by Holdco under the Holdco Stock Plan or (B) as contemplated by Section 9.1(1) of the Drag-Along RightMaster Rights Agreement);
(v) effecting an increase or reduction of materially change the authorized share capital, split-off, spin-off, dissolution, liquidation, winding-up or bankruptcy of the Company or any material Subsidiary thereof (for the avoidance of doubt, issuance of any shares under the exceptional proviso of the definition of “New Securities” shall not be subject to such approvals)Business;
(vi) selling, mortgaging, pledging, leasing, transferring, incurring a lien on or otherwise disposing grant any exclusive license to any of substantially all of its assets the Company’s or any of the assets which are outside the ordinary course of business of the Company and exceeding the materiality threshold established by the Board from time to timeits subsidiaries’ material intellectual property rights;
(vii) making any material changes to incur or engaging in any business materially different from the Core Businessguarantee, or ceasing permit its subsidiaries to incur or guarantee, any material existing business line or activities indebtedness in excess of the Company$15,000,000;
(viii) incurring any material indebtedness liquidate, dissolve or assuming any material financial obligation exceeding wind up the materiality threshold established by Company, or cause the Board from time to time and outside the ordinary course of business bankruptcy or voluntary insolvency of the Company;
(ix) making hire, terminate or change the compensation of any capital expenditures employee of the Company or investment in any other company exceeding US$400,000,000 of its subsidiaries whose annual base salary is equal to or such other materiality threshold established by the Board from time to timegreater than $180,000;
(x) creating pay or declare any encumbrance over the whole Distributions or part dividends (other than as provided in Sections 5.1 and 5.3);
(xi) unless approved by a majority of the share capitalBoard, undertakingincluding in such majority at least one designee of each Significant Securityholder, material property approve or material amend the Company’s operating plan (the “Annual Budget”) for any fiscal year (it being understood that deviations from the Annual Budget as contemplated by subclause (xii) below shall not be deemed amendments to the Annual Budget);
(xii) unless approved by a majority of the Board, including in such majority at least one designee of each Significant Securityholder, make or permit its subsidiaries to make any expenditures or commitments (A) in excess of 5% of the total operating expenses reflected in the Annual Budget, or (B) in excess of 10% of the amount reflected in any line item in the Annual Budget;
(xiii) sell assets of the Company or any material Subsidiary thereofof its subsidiaries in a single transaction or series of related transactions having a fair market value in excess of $15,000,000, other than as permitted by the annual budget or the business and financial plan approved by the Boardmake or permit its subsidiaries to make investments in or acquisitions of any Person, which investment or acquisition has a fair market value in excess of $15,000,000;
(xixiv) increasing otherwise enter into or decreasing the authorized size be a party to or permit any of its subsidiaries to enter into or be a party to any transaction with any affiliate, director, officer, or employee of the Board; orCompany or any “associate” (as defined in Rule 12b-2 promulgated under the Exchange Act) of any such Person, except for transactions with respect to which it is reasonably apparent from the face of the agreement, taking into account the entire agreement, contemplated by agreements in effect as of the Original Issue Date (and as such agreements are in effect as of the Original Issue Date), and transactions in the ordinary course of business and pursuant to reasonable requirements of the Business and upon fair and reasonable terms that are approved by a majority of the disinterested members of the Board after disclosure of the affiliate relationship;
(xiixv) amending effect or waiving make any provision subdivision, recapitalization or reorganization of the Articles outstanding Units, or any split of or dividend or distribution payable in, Units (collectively, a “Recapitalization”), except for a Recapitalization of any Corresponding Units (as defined in a the Master Rights Agreement) that is concurrently effected or made in an identical manner that would alter or change by Holdco with respect to its applicable outstanding Corresponding Shares (as defined in the rightsMaster Rights Agreement), preferences or privileges of in compliance with the Ordinary Shares.Master Rights Agreement;
(cxvi) The Company shall not, and shall not permit any other Group Company toexcept as otherwise provided in this Agreement, make any changes significant tax elections; and
(xvii) enter into any agreement or covenant that obligates the Company or any subsidiary to do any of the Control Documents including any transfer or assignment of any party’s rights and obligations under any of the Control Documents and any appointment of representatives, specified persons or proxies under the Control Documents, except as contemplated in this Agreement or by the Tencent Transaction Documents, without first obtaining the approval (by vote or written consent, as provided by applicable Laws or the Articles) of the holders of at least 66.7% of the then total issued and outstanding Ordinary Shares of the Companyforegoing.
(d) Without prejudice to Section 10.2(b) above, the Company shall not, and shall not permit any other Group Company to, carry out any of the following actions involving itself or any of its Subsidiaries without first obtaining the prior written approval of Tencent:
(i) any merger, consolidation, transfer of shares or other form of restructuring of the Company involving a Restricted Person;
(ii) any sale of all or substantially all of the assets of the Group Companies to a Restricted Person;
(iii) any issuance of New Securities by the Company to any Restricted Person;
(iv) entering into any joint venture or partnership arrangement with a Restricted Person; or
(v) engaging in any business other than the Core Business.
Appears in 1 contract
Protective Provisions. At any time from and after the date of this Agreement until the earlier to occur of (ai) The Company shall not sell any Effective Registration or issue any New Securities without first obtaining (ii) the approval (Transfer by vote or written consent, as provided by applicable Laws or the Articles) Purchaser pursuant to Article XIII of greater than fifty-percent of the Shareholders holding at least 66.7% aggregate number of shares of Class B Common Stock acquired hereunder (measured as of the then total issued and outstanding Ordinary Shares held by all Shareholders. The Company shall not sell or issue any New Securities at applicable date of determination, a purchase price that has “Significant Sale”), except as reasonably required in connection with a pre-money valuation of the Company of less than US$6 billion without first obtaining the approval (by vote or written consent, as provided by applicable Laws or the Articles) of the Shareholders holding at least 90% of the then total issued and outstanding Ordinary Shares held by all Shareholders.
(b) Without prejudice to Section 10.2(a) aboveRegistration Event, the Company shall not, and none of the Key Holders shall not permit any other applicable Group the Company to, except as expressly permitted under this Agreement either directly or in connection with any put right of a Shareholder as set forth in the applicable Subscription Agreementsindirectly by amendment, carry out merger, consolidation or otherwise, take or permit any of the following actions involving itself or without (in addition to any of its Subsidiaries as applicable without first obtaining the approval (other vote required by vote or written consent, as provided by applicable Laws law or the Articles) Certificate of Incorporation of the Shareholders holding at least 66.7% Company) the prior written consent of the then total issued and outstanding Ordinary Shares held by all ShareholdersPurchaser, which consent shall not be unreasonably withheld, delayed or conditioned:
Section 8.01 amend, alter or repeal any provision of the Certificate of Incorporation or Bylaws of the Company in a manner that disproportionately affects the powers, preferences or rights of the Class B Common Stock (i) altering other than, for the avoidance of doubt, any amendments, restatements or changing the rightsother modifications that by their terms are only effective upon an Effective Registration);
Section 8.02 create, or privileges of authorize the Ordinary Shares creation of, or creating (by reclassification issue or otherwise) obligate itself to issue shares of, any new additional class or series of shares having rights, preferences capital stock equal or privileges senior to the Class B Common Stock with respect to the distribution of assets on the liquidation, dissolution or winding up of the Company, the payment of dividends and rights of redemption, or increase the authorized number of shares of Class B Common Stock or increase the authorized number of shares of Class A Common Stock;
Section 8.03 reclassify, alter or amend any existing security of the Company that is pari passu with the Class B Common Stock in respect of the distribution of assets on the liquidation, dissolution or winding up of the Company, the payment of dividends or rights of redemption, if such reclassification, alteration or amendment would render such other security senior to the Class B Common Stock in respect of any such right, preference, or privilege;
Section 8.04 declare, pay or set aside any dividends or otherwise make any distributions on shares of any class or series of capital stock of the Company (other than dividends on shares of Class A Common Stock or Class B Common Stock payable in shares of Class A Common Stock or Class B Common Stock, respectively) unless such a dividend or distribution is paid with respect to all outstanding shares of Class A Common Stock or Class B Common Stock on a parity with pro rata and pari passu basis; provided, that, the Ordinary Shares;
Company shall not declare, pay or set aside any dividends or otherwise make any distributions on shares of any class or series of capital stock of the Company (other than dividends on shares of Class A Common Stock or Class B Common Stock payable in shares of Class A Common Stock or Class B Common Stock, respectively, or ordinary quarterly cash dividends) during (i) the period of time between the signing of this Agreement and the Initial Closing; or (ii) reclassifying any outstanding Ordinary Shares into shares having rights, preferences or privileges with respect to dividends or assets senior to or on a parity with the Ordinary Shares;
(iii) declaring or paying any dividend or distribution or otherwise redeeming or repurchasing any issued and outstanding shares period of the Company;
(iv) making any acquisition, sale of control or assets, merger, consolidation, joint venture or partnership arrangements exceeding the materiality threshold established by time between the Board from time to time, except pursuant to the exercise of the Drag-Along Right;
(v) effecting adopting a new FMV and an increase or reduction of the authorized share capital, split-off, spin-off, dissolution, liquidation, winding-up or bankruptcy of the Company or any material Subsidiary thereof applicable Additional Closing (for the avoidance of doubt, issuance whether or not such dividend or distribution is paid with respect to all outstanding shares of any shares under the exceptional proviso of the definition of “New Securities” shall not be subject to such approvalsClass A Common Stock or Class B Common Stock on a pro rata and pari passu basis);
Section 8.05 prior to the Maximum Amount having been purchased hereunder (vi) selling, mortgaging, pledging, leasing, transferring, incurring a lien on or otherwise disposing of substantially all of its assets or any of the assets which are outside the ordinary course of business of the Company and exceeding the materiality threshold established by the Board as such amount may be increased from time to time;
(vii) making ), purchase or redeem any material changes to or engaging in any business materially different from the Core Business, or ceasing any material existing business line or activities shares of Class B Common Stock of the Company;
(viii) incurring any material indebtedness or assuming any material financial obligation exceeding the materiality threshold established by the Board from time to time and outside the ordinary course of business of the Company;
(ix) making any capital expenditures or investment in any other company exceeding US$400,000,000 or such other materiality threshold established by the Board from time to time;
(x) creating any encumbrance over the whole or part of the share capital, undertaking, material property or material assets of the Company or any material Subsidiary thereof, other than as permitted by set forth herein or pursuant to the annual budget or Equity Incentive Plans during (i) the business and financial plan approved by period of time between the Board;
(xi) increasing or decreasing the authorized size signing of the BoardAgreement and the Initial Closing; or (ii) the period of time between the Board adopting a new FMV and an applicable Subsequent Closing; or
(xii) amending Section 8.06 enter into or waiving be a party to any provision of the Articles in a manner transaction that would alter be disclosable by the Company under Section 404 of Regulation S-K (or change any successor regulation) if the rights, preferences or privileges of the Ordinary Shares.
(c) The Company shall not, and shall not permit any other Group Company to, make any changes to any of the Control Documents including any transfer or assignment of any party’s rights and obligations under any of the Control Documents and any appointment of representatives, specified persons or proxies were a reporting company under the Control DocumentsExchange Act, except as for transactions contemplated in by this Agreement or to the extent such transactions are approved by the Tencent Transaction Documents, without first obtaining the approval (by vote or written consent, as provided by applicable Laws or the Articles) a majority of the holders of at least 66.7% of disinterested directors on the then total issued and outstanding Ordinary Shares of the CompanyBoard.
(d) Without prejudice to Section 10.2(b) above, the Company shall not, and shall not permit any other Group Company to, carry out any of the following actions involving itself or any of its Subsidiaries without first obtaining the prior written approval of Tencent:
(i) any merger, consolidation, transfer of shares or other form of restructuring of the Company involving a Restricted Person;
(ii) any sale of all or substantially all of the assets of the Group Companies to a Restricted Person;
(iii) any issuance of New Securities by the Company to any Restricted Person;
(iv) entering into any joint venture or partnership arrangement with a Restricted Person; or
(v) engaging in any business other than the Core Business.
Appears in 1 contract
Sources: Common Stock Purchase Agreement (Bentley Systems Inc)
Protective Provisions. (a) The In addition to such other limitations as may be provided herein or in the Articles of Association of the Company, the following acts of the Company shall not sell or issue any New Securities without first obtaining require a resolution of Shareholders which shall include the prior written approval (by vote or written consent, as provided by applicable Laws or of the Articlesholder(s) of the Shareholders holding at least 66.775% of the then total issued and outstanding Ordinary Preferred Shares held by all Shareholders. The Company (on an as-converted basis); provided that such requirement shall not sell or issue any New Securities at terminate upon a purchase price that has a pre-money valuation of the Company of less than US$6 billion without first obtaining the approval (by vote or written consent, as provided by applicable Laws or the Articles) of the Shareholders holding at least 90% of the then total issued and outstanding Ordinary Shares held by all Shareholders.
(b) Without prejudice to Section 10.2(a) above, the Company shall not, and shall not permit any other applicable Group Company to, except as expressly permitted under this Agreement or in connection with any put right of a Shareholder as set forth in the applicable Subscription Agreements, carry out any of the following actions involving itself or any of its Subsidiaries as applicable without first obtaining the approval (by vote or written consent, as provided by applicable Laws or the Articles) of the Shareholders holding at least 66.7% of the then total issued and outstanding Ordinary Shares held by all ShareholdersQualified Public Offering:
(i1) altering any amendment or changing change of the rights, preferences, privileges or privileges powers of, or the restrictions provided for the benefit of, the Preferred Shares of the Ordinary Shares or creating Company;
(by reclassification or otherwise2) any new action to authorize, create or issue shares of any class or series of shares the Company having rights, preferences or privileges senior superior to or on a parity with the Preferred Shares in any aspects including without limitation dividend rights, redemption rights and/or liquidation rights;
(3) any new issuance of any equity securities of the Company, excluding (i) any issuance of the Series A1 Shares under the Purchase Agreement, (ii) any issuance of Ordinary Shares upon conversion of the Preferred Shares, and (iii) the issuance of up to 66.58 Ordinary Shares (or options or warrants therefor) under employee equity incentive plans approved by the Board and the holders of the Preferred Shares;
(ii4) reclassifying any action of the Company to reclassify any outstanding Ordinary Shares shares into shares having rights, preferences or privileges with respect priority as to dividends or assets senior to or on a parity with the Ordinary preference of the Preferred Shares;
(iii5) declaring any increase or paying any dividend decrease of the authorized number of Ordinary Shares or distribution or otherwise redeeming or repurchasing any issued and outstanding shares Preferred Shares of the Company;
(iv6) making any acquisition, sale repurchase or redemption of control or assets, merger, consolidation, joint venture or partnership arrangements exceeding the materiality threshold established by the Board from time to time, except pursuant to the exercise of the Drag-Along Right;
(v) effecting an increase or reduction of the authorized share capital, split-off, spin-off, dissolution, liquidation, winding-up or bankruptcy any equity securities of the Company or any material Subsidiary thereof other than pursuant to (for A) the avoidance of doubt, issuance of any shares under the exceptional proviso redemption right of the definition holders of “New Securities” shall not be subject Preferred Shares as provided in the Memorandum and Articles, or (B) contractual rights to such approvals);
(vi) sellingrepurchase Ordinary Shares from the employees, mortgaging, pledging, leasing, transferring, incurring a lien on directors or otherwise disposing of substantially all of its assets or any of the assets which are outside the ordinary course of business consultants of the Company and exceeding the materiality threshold established upon termination of their employment or services or pursuant to a contractual right of first refusal held by the Board from time to time;
(vii) making any material changes to or engaging in any business materially different from the Core Business, or ceasing any material existing business line or activities of the Company;
(viii7) incurring any material indebtedness or assuming any material financial obligation exceeding the materiality threshold established by the Board from time to time and outside the ordinary course of business amendment of the CompanyMemorandum and Articles of Association or other charter documents of the Company (including any Major Subsidiary);
(ix8) any merger or consolidation of the Company (including any Subsidiary) making any capital expenditures with or investment in into any other company exceeding US$400,000,000 business entity in which the shareholders of the Company (including any Subsidiary) immediately after such merger or such other materiality threshold established by consolidation held shares representing less than a majority of the Board from time to timevoting power of the outstanding share capital of the surviving business entity;
(x9) creating any encumbrance over the whole or part of the share capitalsale, undertakinglease, material property or material assets of the Company or any material Subsidiary thereof, other than as permitted by the annual budget or the business and financial plan approved by the Board;
(xi) increasing or decreasing the authorized size of the Board; or
(xii) amending or waiving any provision of the Articles in a manner that would alter or change the rights, preferences or privileges of the Ordinary Shares.
(c) The Company shall not, and shall not permit any other Group Company to, make any changes to any of the Control Documents including any transfer or assignment of any party’s rights and obligations under any of the Control Documents and any appointment of representatives, specified persons or proxies under the Control Documents, except as contemplated in this Agreement or by the Tencent Transaction Documents, without first obtaining the approval (by vote or written consent, as provided by applicable Laws or the Articles) of the holders of at least 66.7% of the then total issued and outstanding Ordinary Shares of the Company.
(d) Without prejudice to Section 10.2(b) above, the Company shall not, and shall not permit any other Group Company to, carry out any of the following actions involving itself or any of its Subsidiaries without first obtaining the prior written approval of Tencent:
(i) any merger, consolidation, transfer of shares or other form of restructuring of the Company involving a Restricted Person;
(ii) any sale disposition of all or substantially all of the assets of the Group Companies to a Restricted PersonCompany (including any Subsidiary), except for intra-group transactions among the Company and any Subsidiaries;
(iii10) any issuance licensing or otherwise transfer of New Securities the patents, copyrights, trademarks or other intellectual property of the Company (including any Subsidiary) other than in the ordinary course of its business, except for intra-group transactions among the Company and any Subsidiaries;
(11) any increase or decrease of the authorized number of the board members of the Company;
(12) the liquidation, dissolution or winding up of the Company (including any Subsidiary);
(13) the declaration or payment of a dividend or other distribution on Ordinary Shares or Preferred Shares of the Company;
(14) any increase of the number of Ordinary Shares of the Company reserved under any employee equity incentive plan;
(15) any increase in compensation of any employee of the Company (including any Subsidiary) with an annual salary of US$50,000 or more by more than twenty percent (20%) in a twelve (12) month period;
(16) the extension by the Company of any loan or guarantee for indebtedness to any Restricted Persondirector, officer, employee or affiliate of the Company (including any Subsidiary), except for intra-group transactions among the Company and any Subsidiaries;
(iv17) entering into any joint venture incurrence of indebtedness in excess of US$300,000 in the aggregate to the Company (including any Subsidiary), or partnership arrangement creation of any encumbrance whatsoever upon the assets, patents, copyrights, trademarks or other intellectual property of the Company (including any Subsidiary);
(18) any purchase by the Company (including any Subsidiary) of real property with a Restricted Personvalue of US$300,000 or more, or any purchase of production facilities with a value of US$500,000 or more, individually or in the aggregate;
(19) any transaction or series of transactions that are not in the ordinary course of the Company’s business where the value involved exceeds US$300,000, individually or in the aggregate, during any twelve (12) month period;
(20) approval of the annual consolidated budget of the Company;
(21) the appointment and removal of any key officer of the Company (including any Major Subsidiary), including the Chief Executive Officer and the Chief Financial Officer;
(22) the appointment and/or reappointment of auditors of the Company;
(23) any transaction involving both the Company (including any Subsidiary) and a shareholder or any of the Company’s employees, officers, directors or shareholders or any affiliate of a shareholder or any of its officers, directors or shareholders, except for intra-group transactions among the Company and any Subsidiaries; or
(v24) engaging any items of capital expenditure outside the annual budget of the Company (including any Subsidiary) in any business other than excess of US$150,000 per month, individually or in the Core Businessaggregate.
Appears in 1 contract
Sources: Series A1 Preferred Share Purchase Agreement (Le Gaga Holdings LTD)