Action by the Board. The Core Shareholders and the Company agree that: (a) A quorum of the Board shall consist of a majority of the total number of directors, which such majority shall include a majority of the designees of the CVC US Designator and a majority of the designees of the FP Designator; provided that in the event that either of the CVC US Designator or the FP Designator, has the right to designate fewer than three directors pursuant to Section 2.01 hereof, a quorum shall exist if at least one Core Director designated by such Person is present. (b) All actions of the Board shall require (i) the affirmative vote of at least a majority of the directors present at a duly convened meeting of the Board at which a quorum is present or (ii) the unanimous written consent of the Board, provided that, in the event that there is a vacancy on the Board and an individual has been nominated to fill such vacancy, the first order of business shall be to fill such vacancy. (c) The Board may create executive, compensation, audit and such other committees as it may determine. Except with respect to the audit committee, the (i) Institutional Securityholders together shall be entitled to majority representation on any committee created by the Board, half of which such majority representation shall consist of a Core Director or Directors designated by the CVC US Designator and half of which such majority representation shall consist of a Core Director or Directors designated by the FP Designator, (ii) CVC Asia Pacific Investors or their Permitted Transferees shall be entitled to minority representation on each committee created by the Board, and (iii) Company and each Core Shareholder entitled to vote for the election of the chairman of any committee (in its capacity as a Securityholder, director of the Board, member of a committee, or otherwise) created by the Board will take all necessary action to ensure that the chairman of such committee is a director designated by the CVC US Designator or the FP Designator in accordance with Section 2.01, in each case until such time as the committee members designated by such Core Shareholders are required to be removed as a result of the Company no longer qualifying as a “controlled company” (within the meaning of the principal securities exchange or quotation system on which the Common Shares are traded or quoted and solely in connection with the ownership of Common Shares by the Core Shareholders). (d) Until such time as the Company no longer qualifies as a “controlled company” (within the meaning of the principal securities exchange or quotation system on which the Common Shares are traded or quoted and solely in connection with the ownership of Common Shares by the Core Shareholders), no action by the Company (including but not limited to any action by the Board or any committee thereof) shall be taken after the date hereof with respect to any of the following matters without the affirmative approval of the Board and either the CVC US Securityholder Representative or the FP Securityholder Representative, in each case, in its capacity as agent for Persons comprising CVC US and FP, in each case, in its capacity as a Securityholder; provided that the vote of a Core Director designated by the CVC US Designator or the FP Designator in favor of any action for which approval is required pursuant to this Section 2.05(d) shall constitute the consent of the CVC US Securityholder Representative (in the case of a vote of a director designated by the CVC US Designator) and the FP Securityholder Representative (in the case of a vote of a director designated by the FP Designator) in its capacity as agent for Persons comprising CVC US and FP, in each case, in its capacity as a Securityholder: (1) any merger or consolidation of the Company with or into any Person, other than a wholly owned Subsidiary, or of any Subsidiary with or into any Person other than the Company or any other wholly owned Subsidiary, or (2) any sale of the Company or any Subsidiary or any significant operations of the Company or any Subsidiary or any joint venture transaction, acquisition or disposition of assets, business, operations or securities by the Company or any Subsidiary (in a single transaction or a series of related transactions) having a value in each case in this clause (2) in excess of $3,000,000, (ii) the declaration of any dividend on or the making of any distribution with respect to, or the recapitalization, reclassification, redemption, repurchase or other acquisition of, any securities of the Company or any Subsidiary, except as expressly permitted by this Agreement, (iii) any liquidation, dissolution, commencement of bankruptcy, liquidation or similar proceedings with respect to the Company or any Subsidiary, (iv) any incurrence, refinancing, alteration of material terms or prepayment by the Company or any Subsidiary of indebtedness for borrowed money in excess of $2,000,000 in the aggregate (or the guaranty by the Company or any Subsidiary of any such indebtedness), or the issuance of any security by the Company or any Subsidiary (not including issuances of such securities in connection with employee or stock option plans previously approved by the Board pursuant to clause (vii) below), in each case other than as specifically contemplated by this Agreement, (v) any capital expenditure or capital lease in excess of $1,000,000 which is not specifically contemplated by the annual business plan of the Company or any Subsidiary, (vi) any entering into, amending or modifying in any material respect of any agreements of the Company or any Subsidiary providing for payments by or to the Company or such Subsidiary in excess of $2,000,000 per annum or $5,000,000 in the aggregate, (vii) any determination of compensation, benefits, perquisites and other incentives for (a) senior management or (b) any other employee whose annual compensation is or will be as a result of such determination in excess of $100,000 per year, of the Company or its Subsidiaries and the approval or amendment of any plans or contracts in connection therewith, and any approval or amendment to any equity or other compensation or benefit plans for employees of the Company or its Subsidiaries, (viii) any appointment or dismissal of any of the Chairman of the Board, Chief Executive Officer, President, Chief Financial Officer or Chief Operating Officer or any other executive officer in any similar capacity of the Company or any Subsidiary, (ix) any change in accounting or tax principles, policies with respect to the financial statements, records or affairs of the Company or any Subsidiary, except as required by generally accepted accounting principles or by law or any other matters that could affect any regulatory status or tax liability of the Company or any Subsidiary, or any Securityholder with respect to the investment by such Securityholder in the Company, (x) any appointment or removal of the auditors, regular legal counsel, financial advisors, underwriters (except underwriters selected as provided in the first sentence of Section 5.04(f), unless such Demand Registration constitutes a First Public Offering), investment bankers or company-wide insurance providers of the Company or any Subsidiary, (xi) any amendment to this Agreement, any exercise or waiver of the Company’s rights under this Agreement, any amendment to an Organizational Document or similar organizational documents of any Subsidiary, (xii) any approval of the annual business plan, budget and long-term strategic plan of the Company or any Subsidiary, (xiii) any modification of the long-term business strategy or scope of the business of the Company or any Subsidiary or any material customer relationships thereof, (xiv) any increase or decrease to the number of directors that comprise the entire Board of the Company or board of directors of any Subsidiary, (xv) any entry into or modification of any contract with a labor union (including any collective bargaining agreement), (xvi) any entry into or modification of any contract with, obligation to or transaction or series of transactions between (1) the Company or any Subsidiary and (2) Hynix or any controlled Affiliate of Hynix, or (xvii) any contract with, obligation to or transaction or series of transactions between, the Company or any Subsidiary and one or more of its securityholders or their Affiliates.
Appears in 2 contracts
Sources: Securityholders' Agreement, Securityholders’ Agreement (MagnaChip Semiconductor CORP)
Action by the Board. The Core Shareholders and the Company agree that:
(a) A quorum of the Board shall consist of a majority of the total number of directorsUnless otherwise provided by this Agreement, which such majority shall include a majority of the designees of the CVC US Designator and a majority of the designees of the FP Designator; provided that in the event that either of the CVC US Designator or the FP Designator, has the right to designate fewer than three directors pursuant to Section 2.01 hereof, a quorum shall exist if at least one Core Director designated by such Person is present.
(b) All all actions of the Board shall require Majority Board Approval.
(b) Unless otherwise restricted by applicable law and subject to the MAA, any action required or permitted to be taken at any meeting of the Board may be taken without a meeting if a consent in writing, setting forth the action to be taken, is signed by, (i) with respect to an action requiring Majority Board Approval, at least four Directors, (ii) with respect to an action requiring Supermajority Board Approval, at least six Directors, and (iii) with respect to an action requiring Consensus Board Approval, at least the Directors required for such a Consensus Board Approval; provided that the Board provides at least one Business Day’s prior written notice of any such action to be taken to all Directors. The Board shall cause any such written consents to be filed with the minutes or proceedings of the Board.
(c) The Board will form or continue to maintain certain specified committees and appoint members as set forth below (in the case of clauses (i) and (ii), in the event that the Initial Period is terminated). Committees shall have only the power to advise the Board with respect to matters pertaining to each such committee, and an action of the Board, by applicable vote or written consent of Directors, shall be required to bind the Company with respect to any proposal, advice or resolution of any committee. All actions of a committee shall require the affirmative vote of at least a majority of the directors members of the committee present at a duly convened meeting of the Board at which a quorum is present or (ii) the unanimous written consent of a majority of the Board, provided that, in members of the event that there is a vacancy on the Board and an individual has been nominated to fill such vacancy, the first order of business shall be to fill such vacancycommittee.
(ci) The Board may will create executivean Executive Committee (the “Executive Committee”), compensationwhich, audit after the Initial Period, will be composed of three of the Directors nominated by NewCo and such other committees as it may determinetwo of the Directors nominated by MDZ. Except with respect to The presence of three members of the audit committee, the (i) Institutional Securityholders together Executive Committee shall be entitled necessary to majority representation on any committee created by the Board, half of which such majority representation shall consist of constitute a Core Director or Directors designated by the CVC US Designator and half of which such majority representation shall consist of a Core Director or Directors designated by the FP Designator, (ii) CVC Asia Pacific Investors or their Permitted Transferees shall be entitled to minority representation on each committee created by the Board, and (iii) Company and each Core Shareholder entitled to vote quorum for the election transaction of the chairman of any committee (in its capacity as business. The Executive Committee shall hold a Securityholder, director of the Board, member of regularly scheduled meeting at least once every month at a committee, or otherwise) created by the Board will take all necessary action to ensure that the chairman of such committee is a director designated by the CVC US Designator or the FP Designator in accordance with Section 2.01, in each case until such time as the committee members designated by such Core Shareholders are required location to be removed as a result of the Company no longer qualifying as a “controlled company” (within the meaning of the principal securities exchange or quotation system on which the Common Shares are traded or quoted and solely in connection with the ownership of Common Shares by the Core Shareholders)determined.
(d) Until such time as the Company no longer qualifies as a “controlled company” (within the meaning of the principal securities exchange or quotation system on which the Common Shares are traded or quoted and solely in connection with the ownership of Common Shares by the Core Shareholders), no action by the Company (including but not limited to any action by the Board or any committee thereof) shall be taken after the date hereof with respect to any of the following matters without the affirmative approval of the Board and either the CVC US Securityholder Representative or the FP Securityholder Representative, in each case, in its capacity as agent for Persons comprising CVC US and FP, in each case, in its capacity as a Securityholder; provided that the vote of a Core Director designated by the CVC US Designator or the FP Designator in favor of any action for which approval is required pursuant to this Section 2.05(d) shall constitute the consent of the CVC US Securityholder Representative (in the case of a vote of a director designated by the CVC US Designator) and the FP Securityholder Representative (in the case of a vote of a director designated by the FP Designator) in its capacity as agent for Persons comprising CVC US and FP, in each case, in its capacity as a Securityholder:
(1) any merger or consolidation of the Company with or into any Person, other than a wholly owned Subsidiary, or of any Subsidiary with or into any Person other than the Company or any other wholly owned Subsidiary, or (2) any sale of the Company or any Subsidiary or any significant operations of the Company or any Subsidiary or any joint venture transaction, acquisition or disposition of assets, business, operations or securities by the Company or any Subsidiary (in a single transaction or a series of related transactions) having a value in each case in this clause (2) in excess of $3,000,000,
(ii) The Board will create a Compensation Committee (the declaration “Compensation Committee”), which, after the Initial Period, will be composed of any dividend on or the making of any distribution with respect to, or the recapitalization, reclassification, redemption, repurchase or other acquisition of, any securities two of the Company or any Subsidiary, except as expressly permitted Directors nominated by this Agreement,NewCo and one of the Directors nominated by MDZ. The presence of two members of the Compensation Committee shall be necessary to constitute a quorum for the transaction of business. The Compensation Committee shall hold a regularly scheduled meeting at least once every calendar quarter at a location to be determined.
(iii) any liquidation, dissolution, commencement of bankruptcy, liquidation or similar proceedings with respect The Board will continue to maintain an Audit Committee (the Company or any Subsidiary,
(iv) any incurrence, refinancing, alteration of material terms or prepayment by the Company or any Subsidiary of indebtedness for borrowed money in excess of $2,000,000 in the aggregate (or the guaranty by the Company or any Subsidiary of any such indebtedness“Audit Committee”), or the issuance of any security by the Company or any Subsidiary (not including issuances of such securities in connection with employee or stock option plans previously approved by the Board pursuant to clause (vii) below), in each case other than as specifically contemplated by this Agreement,
(v) any capital expenditure or capital lease in excess of $1,000,000 which is not specifically contemplated by the annual business plan will be composed of the Company or any Subsidiary,
(vi) any entering intoIndependent Director. Notwithstanding the Board’s ability to grant authority, amending or modifying in any material respect of any agreements of powers and duties to committees, the Company or any Subsidiary providing for payments Audit Committee shall have such powers and responsibilities as may be required by or to the Company or such Subsidiary in excess of $2,000,000 per annum or $5,000,000 in the aggregate,
(vii) any determination of compensation, benefits, perquisites and other incentives for (a) senior management or (b) any other employee whose annual compensation is or will be as a result of such determination in excess of $100,000 per year, of the Company or its Subsidiaries applicable securities laws and the approval or amendment rules of any plans or contracts in connection therewith, and any approval or amendment to any equity or other compensation or benefit plans for employees of the Company or its Subsidiaries,
(viii) any appointment or dismissal of any of the Chairman of the Board, Chief Executive Officer, President, Chief Financial Officer or Chief Operating Officer NASDAQ or any other executive officer in any similar capacity of exchange on which the Company or any Subsidiary,
(ix) any change in accounting or tax principles, policies with respect Shares are listed. The Audit Committee shall hold a regularly scheduled meeting at least once every quarter at a location to the financial statements, records or affairs of the Company or any Subsidiary, except as required by generally accepted accounting principles or by law or any other matters that could affect any regulatory status or tax liability of the Company or any Subsidiary, or any Securityholder with respect to the investment by such Securityholder in the Company,
(x) any appointment or removal of the auditors, regular legal counsel, financial advisors, underwriters (except underwriters selected as provided in the first sentence of Section 5.04(f), unless such Demand Registration constitutes a First Public Offering), investment bankers or company-wide insurance providers of the Company or any Subsidiary,
(xi) any amendment to this Agreement, any exercise or waiver of the Company’s rights under this Agreement, any amendment to an Organizational Document or similar organizational documents of any Subsidiary,
(xii) any approval of the annual business plan, budget and long-term strategic plan of the Company or any Subsidiary,
(xiii) any modification of the long-term business strategy or scope of the business of the Company or any Subsidiary or any material customer relationships thereof,
(xiv) any increase or decrease to the number of directors that comprise the entire Board of the Company or board of directors of any Subsidiary,
(xv) any entry into or modification of any contract with a labor union (including any collective bargaining agreement),
(xvi) any entry into or modification of any contract with, obligation to or transaction or series of transactions between (1) the Company or any Subsidiary and (2) Hynix or any controlled Affiliate of Hynix, or
(xvii) any contract with, obligation to or transaction or series of transactions between, the Company or any Subsidiary and one or more of its securityholders or their Affiliatesbe determined.
Appears in 2 contracts
Sources: Shareholder Agreement (Inversiones Los Avellanos), Shareholder Agreement (Inversiones Los Avellanos)
Action by the Board. The Core Shareholders and the Company agree that:
(a) A quorum of the Board shall will consist of a majority at least four directors and one of the total number of directorsdirectors constituting such a quorum must be an Investor Director and one must be a Non-Investor Director. Notwithstanding the foregoing, which such majority shall include a majority of the designees of the CVC US Designator and a majority of the designees of the FP Designator; provided that in the event that either of a meeting has been duly noticed, called and convened in accordance with applicable Law and a director fails to attend or otherwise participate as permitted by Law, the CVC US Designator other directors in attendance or the FP Designator, has the right to designate fewer than three directors pursuant to Section 2.01 hereof, otherwise participating will constitute a quorum shall exist if at least one Core Director designated by such Person is present.
(b) quorum. All actions of the Board shall will require (i) the affirmative vote of at least a majority of the directors present votes entitled to be cast (pursuant to Section 6.5(b)) being cast in the affirmative at a duly convened meeting of the Board duly noticed and convened in accordance with applicable Law and otherwise in accordance with the terms of this Agreement and at which a quorum is present or (ii) the unanimous written consent of the Board; provided, provided thathowever, that in the event that there is a vacancy on the Board and an individual has been nominated to fill such vacancy, the first order of business shall will be to fill such vacancy.
(cb) The Board may create executive, compensation, audit and such other committees as it may determine. Except with respect to the audit committee, the (i) Institutional Securityholders together shall Each director will be entitled to majority representation one vote on any committee created by all matters that are presented to the Board; provided, half of which such majority representation shall consist of a Core however, that if at any time after March 31, 2009 the EBITDA for the immediately preceding and completed four calendar quarters (the “EBITDA Calculation”) falls below the Trigger Threshold, as the same may hereafter be adjusted, for three consecutive months, then each Investor Director or Directors designated by the CVC US Designator and half of which such majority representation shall consist of a Core Director or Directors designated by the FP Designator, (ii) CVC Asia Pacific Investors or their Permitted Transferees shall will be entitled to minority representation two votes on each committee created by the Boardall such matters, and (iii) Company and each Core Shareholder entitled to vote for the election of the chairman of any committee (in its capacity as a Securityholder, director of the Board, member of a committee, or otherwise) created by other directors on the Board will take be entitled to one vote on all necessary action to ensure that the chairman of such committee is a director designated by the CVC US Designator or the FP Designator in accordance with Section 2.01matters, in each case until such time as the committee members designated by such Core Shareholders are required to EBITDA Calculation exceeds the Trigger Threshold, as the same may hereafter be removed as a result of the Company no longer qualifying as a “controlled company” (within the meaning of the principal securities exchange or quotation system on which the Common Shares are traded or quoted and solely in connection with the ownership of Common Shares by the Core Shareholders)adjusted, for three consecutive months.
(dc) Until such time as Notwithstanding anything herein to the Company no longer qualifies as a “controlled company” (within the meaning contrary, each of the principal securities exchange or quotation system on which the Common Shares are traded or quoted and solely in connection with the ownership of Common Shares by the Core Shareholders)parties hereto further agrees that, no action by the Company (including but not limited to any action by the Board or any committee thereof) shall be taken after the date hereof with respect to any of the following matters without upon the affirmative approval of the Board and either the CVC US Securityholder Representative or the FP Securityholder Representative, in each case, in its capacity as agent for Persons comprising CVC US and FP, in each case, in its capacity as a Securityholder; provided that the vote of a Core Director designated by the CVC US Designator or the FP Designator in favor of any action for which approval is required pursuant to this Section 2.05(d) shall constitute the consent majority of the CVC US Securityholder Representative Investor Directors (in the case of “Investor Director Voters”), a vote of a director designated by the CVC US Designatormanagement employee may be terminated for “Cause” under such management employee’s employment agreement if such management employee (i) and the FP Securityholder Representative (in the case of a vote of a director designated by the FP Designator) in its capacity as agent for Persons comprising CVC US and FPbreaches any non-solicitation, in each case, in its capacity as a Securityholder:
(1) any merger non-competition or consolidation of the Company with or into any other restrictive covenant applicable to such Person, other than a wholly owned Subsidiary, or of any Subsidiary with or into any Person other than the Company or any other wholly owned Subsidiary, or (2) any sale of the Company or any Subsidiary or any significant operations of the Company or any Subsidiary or any joint venture transaction, acquisition or disposition of assets, business, operations or securities by the Company or any Subsidiary (in a single transaction or a series of related transactions) having a value in each case in this clause (2) in excess of $3,000,000,
(ii) the declaration commits any act of any dividend on or the making of any distribution with respect tomisappropriation, or the recapitalizationfraud, reclassification, redemption, repurchase or other acquisition of, any securities of the Company or any Subsidiary, except as expressly permitted by this Agreement,
(iii) any liquidation, dissolution, commencement of bankruptcy, liquidation or similar proceedings including with respect to the Company or any Subsidiary,
(iv) any incurrence, refinancing, alteration of material terms or prepayment by the Company or any Subsidiary of indebtedness for borrowed money in excess of $2,000,000 in the aggregate (or the guaranty by the Company or any Subsidiary of any such indebtedness), or the issuance of any security by the Company or any Subsidiary (not including issuances of such securities in connection with employee or stock option plans previously approved by the Board pursuant to clause (vii) below), in each case other than as specifically contemplated by this Agreement,
(v) any capital expenditure or capital lease in excess of $1,000,000 which is not specifically contemplated by the annual business plan of the Company or any Subsidiary,
(vi) any entering into, amending or modifying in any material respect of any agreements of the Company or any Subsidiary providing for payments by or to the Company or such Subsidiary in excess of $2,000,000 per annum or $5,000,000 in the aggregate,
(vii) any determination of compensation, benefits, perquisites Company’s accounting and other incentives for (a) senior management or (b) any other employee whose annual compensation is or will be as a result of such determination in excess of $100,000 per year, of the Company or its Subsidiaries and the approval or amendment of any plans or contracts in connection therewith, and any approval or amendment to any equity or other compensation or benefit plans for employees of the Company or its Subsidiaries,
(viii) any appointment or dismissal of any of the Chairman of the Board, Chief Executive Officer, President, Chief Financial Officer or Chief Operating Officer or any other executive officer in any similar capacity of the Company or any Subsidiary,
(ix) any change in accounting or tax principles, policies with respect to the financial statements, records embezzlement or affairs of the Company or any Subsidiary, except as required by generally accepted accounting principles or by law or any other matters that could affect any regulatory status or tax liability of the Company or any Subsidiary, or any Securityholder with respect to the investment by such Securityholder in the Company,
(x) any appointment or removal of the auditors, regular legal counsel, financial advisors, underwriters (except underwriters selected as provided in the first sentence of Section 5.04(f), unless such Demand Registration constitutes a First Public Offering), investment bankers or company-wide insurance providers of the Company or any Subsidiary,
(xi) any amendment to this Agreement, any exercise or waiver conversion of the Company’s rights under this Agreement, any amendment to an Organizational Document or similar organizational documents of any Subsidiary,
(xii) any approval of the annual business plan, budget and long-term strategic plan of the Company or any Subsidiary,
’s property, or (xiiiiii) is convicted or enters a plea of no contest for any modification felony or is indicted or subject to a similar formal charge for any felony or lesser crime involving fraud, moral turpitude, embezzlement or theft; provided, however, that such vote must be made in good faith. Notwithstanding the foregoing, in the event of a dispute between such management employee and the Investor Director Voters as to whether sufficient Cause exists to terminate such management employee’s employment, then such dispute will be determined exclusively by arbitration before a single arbitrator administered by the American Arbitration Association (the “AAA”) in accordance with its commercial rules then in effect. The arbitration will be commenced and take place in the regional office of AAA located in Los Angeles, California and the parties will use their commercially reasonable efforts to complete the arbitration as promptly as practicable. During the pendency of any such arbitration, such management employee will continue to serve in his then management position within the Company; provided, however, that if such arbitration is not finally concluded on or prior to the 30th day following the date on which the arbitration is commenced, such management employee will immediately be removed and be replaced by a designee of the long-term business strategy or scope Investor. Each party to the arbitration shall bear its own legal fees and expenses and shall evenly share the remaining costs of the business of the Company or any Subsidiary or any material customer relationships thereof,
(xiv) any increase or decrease to the number of directors that comprise the entire Board of the Company or board of directors of any Subsidiary,
(xv) any entry into or modification of any contract with a labor union (including any collective bargaining agreement),
(xvi) any entry into or modification of any contract with, obligation to or transaction or series of transactions between (1) the Company or any Subsidiary and (2) Hynix or any controlled Affiliate of Hynix, or
(xvii) any contract with, obligation to or transaction or series of transactions between, the Company or any Subsidiary and one or more of its securityholders or their Affiliatesarbitration.
Appears in 2 contracts
Sources: Security Holders Agreement, Security Holders Agreement (Skullcandy, Inc.)
Action by the Board. The Core Shareholders and the Company agree that:
(a) A quorum of the Board shall consist of a majority of the total number of directors, which such majority shall include a majority of the designees nominees of the CVC US Designator and a majority of the designees of the FP Designator; FP, provided that in the event that if FP has not nominated either of the CVC US Designator or the FP Designator, has the right to designate fewer than three its independent directors pursuant to Section 2.01 hereof, a quorum 2.01(a) such majority shall exist if at least one Core Director designated include all directors nominated by such Person is presentFP.
(b) All actions of the Board shall require (i) the affirmative vote of at least a majority of the directors present at a duly convened meeting of the Board at which a quorum is present or (ii) the unanimous written consent of the Board, provided that, in the event that if there is a vacancy on the Board and an individual has been nominated to fill such vacancy, the first order of business shall be to fill such vacancy.
(c) The Board may create executive, compensation, audit audit, nominating and corporate governance and such other committees as it may determine. Except with respect During such time as FP’s Aggregate Ownership Percentage is greater than or equal to the audit committee25%, the (i) Institutional Securityholders together FP shall be entitled to majority representation on any committee created by the Board, half of which such majority representation shall consist of a Core Director any director or Directors directors designated by FP to serve on such committee, provided that if the CVC US Designator and half of which such majority representation shall consist of a Core Director rules or Directors designated by the FP Designator, (ii) CVC Asia Pacific Investors or their Permitted Transferees shall be entitled to minority representation on each committee created by the Board, and (iii) Company and each Core Shareholder entitled to vote for the election regulations of the chairman of any committee (in its capacity as a Securityholder, director of the Board, member of a committee, or otherwise) created by the Board will take all necessary action to ensure that the chairman of such committee is a director designated by the CVC US Designator SEC or the FP Designator in accordance with Section 2.01, in each case until such time as the committee members designated by such Core Shareholders are required to be removed as a result of the Company no longer qualifying as a “controlled company” (within the meaning of the principal securities exchange or quotation system on which the Common Shares are Stock is traded require any committee to consist of one or quoted and solely in connection with the ownership of Common Shares more “independent directors” (as such term is defined by the Core Shareholders).
(d) Until such time as the Company no longer qualifies as a “controlled company” (within the meaning rules of the principal securities exchange or quotation system on which the Common Shares are traded or quoted and solely in connection with Stock is traded), the ownership of Common Shares directors designated to serve on such committee by FP shall be “independent directors”. FP’s entitlement to majority representation on any committee created by the Core Shareholders)Board shall:
(i) at such time as FP’s Aggregate Ownership Percentage is less than 25%, be reduced to an entitlement to designate one-fourth of the members of each such committee, rounded up to the nearest whole number of members if such fraction is not a whole number;
(ii) at such time as FP’s Aggregate Ownership Percentage is less than 20%, be reduced to an entitlement to designate one-fifth of the members of each such committee, rounded up to the nearest whole number of members if such fraction is not a whole number;
(iii) at such time as FP’s Aggregate Ownership Percentage is less than 10%, be reduced to an entitlement to designate one-tenth of the members of each such committee, rounded up to the nearest whole number of members if such fraction is not a whole number;
(iv) terminate at such time as FP’s Aggregate Ownership Percentage is less than 5%.
(d) At such time as FP’s Aggregate Ownership Percentage is greater than or equal to 25%, no action by the Company (including but not limited to any action by the Board or any committee thereof) shall be taken after the date hereof with respect to any of the following matters without the prior written consent of FP and the affirmative approval of the Board and either Board:
(i) the CVC US Securityholder Representative declaration of any dividend on or the FP Securityholder Representativemaking of any distribution with respect to, in each caseor the recapitalization, in its capacity reclassification, redemption, repurchase or other acquisition of, any securities of the Company or any Subsidiary, except as agent for Persons comprising CVC US and FPexpressly permitted by this Agreement;
(ii) any incurrence, in each caserefinancing, in its capacity as a Securityholder; provided that the vote alteration of a Core Director designated material terms or prepayment by the CVC US Designator Company or any Subsidiary of indebtedness for borrowed money in excess of $10,000,000 in the aggregate (or the FP Designator in favor guaranty by the Company or any Subsidiary of any action for which such indebtedness);
(iii) any approval is required pursuant to this Section 2.05(d) shall constitute the consent of the CVC US Securityholder Representative annual business plan, budget and long-term strategic plan of the Company or any Subsidiary;
(in iv) any modification of the case long-term business strategy or scope of a vote the business of a director designated by the CVC US Designator) and the FP Securityholder Representative (in the case of a vote of a director designated by the FP Designator) in its capacity as agent for Persons comprising CVC US and FP, in each case, in its capacity as a Securityholder:Company or any Subsidiary or any material customer relationships thereof;
(1) any merger or consolidation of the Company with or into any Person, other than a wholly owned Subsidiary, or of any Subsidiary with or into any Person other than the Company or any other wholly owned Subsidiary, or (2) any sale of the Company or any Subsidiary or any significant operations of the Company or any Subsidiary or any joint venture transaction, acquisition or disposition of assets, business, operations or securities by the Company or any Subsidiary (in a single transaction or a series of related transactions) having a value in each case in this clause (2) in excess of $3,000,000,10,000,000;
(ii) the declaration of any dividend on or the making of any distribution with respect to, or the recapitalization, reclassification, redemption, repurchase or other acquisition of, any securities of the Company or any Subsidiary, except as expressly permitted by this Agreement,
(iiivi) any liquidation, dissolution, commencement of bankruptcy, liquidation or similar proceedings with respect to the Company or any Subsidiary,;
(ivvii) any incurrence, refinancing, alteration of material terms or prepayment by the Company or any Subsidiary of indebtedness for borrowed money in excess of $2,000,000 in the aggregate (or the guaranty by the Company or any Subsidiary of any such indebtedness), or the issuance of any security by the Company or any Subsidiary (not including issuances of such securities in connection with employee or stock option plans previously approved by the Board pursuant to clause (vii) belowBoard), in each case other than as specifically contemplated by this Agreement,;
(v) any capital expenditure or capital lease in excess of $1,000,000 which is not specifically contemplated by the annual business plan of the Company or any Subsidiary,
(vi) any entering into, amending or modifying in any material respect of any agreements of the Company or any Subsidiary providing for payments by or to the Company or such Subsidiary in excess of $2,000,000 per annum or $5,000,000 in the aggregate,
(viiviii) any determination of compensation, benefits, perquisites and other incentives for (a) senior management the Chief Executive Officer or (b) any other employee whose annual compensation is or will be as a result of such determination in excess of $100,000 per year, the Chief Financial Officer of the Company or its Subsidiaries and the approval or amendment of any plans or contracts in connection therewith, and any approval or amendment to any equity or other compensation or benefit plans for employees of the Company or its Subsidiaries,;
(viiiix) any appointment or dismissal of any of the Chairman of the Board, Chief Executive Officer, President, Chief Financial Officer or Chief Operating Officer or any other executive officer in any similar capacity of the Company or any Subsidiary,
(ix) any change in accounting or tax principles, policies with respect to the financial statements, records or affairs of the Company or any Subsidiary, except as required by generally accepted accounting principles or by law or any other matters that could affect any regulatory status or tax liability of the Company or any Subsidiary, or any Securityholder with respect to the investment by such Securityholder in the Company,;
(x) any appointment or removal of the auditors, regular legal counsel, financial advisors, underwriters (except underwriters selected as provided in the first sentence of Section 5.04(f), unless such Demand Registration constitutes a First Public Offering), investment bankers or company-wide insurance providers of the Company or any Subsidiary,
(xi) any amendment to this Agreement, any exercise or waiver of the Company’s rights under this Agreement, any amendment to an Organizational Document the Charter or similar organizational documents Bylaws or any adoption of or amendment to the certificate of incorporation or bylaws of any Subsidiary,; or
(xii) any approval of the annual business plan, budget and long-term strategic plan of the Company or any Subsidiary,
(xiii) any modification of the long-term business strategy or scope of the business of the Company or any Subsidiary or any material customer relationships thereof,
(xivxi) any increase or decrease to the number of directors Directors that comprise the entire Board of the Company or board of directors of any Subsidiary,
(xv) any entry into or modification of any contract with a labor union (including any collective bargaining agreement),
(xvi) any entry into or modification of any contract with, obligation to or transaction or series of transactions between (1) the Company or any Subsidiary and (2) Hynix or any controlled Affiliate of Hynix, or
(xvii) any contract with, obligation to or transaction or series of transactions between, the Company or any Subsidiary and one or more of its securityholders or their Affiliates.
Appears in 2 contracts
Sources: Stockholders' Agreement (Nptest Holding Corp), Shareholder Agreement (Nptest Holding Corp)
Action by the Board. The Core Shareholders and the Company agree that:
(a) A quorum of the Board shall consist of a majority of the total number of directors, which such majority shall include a majority at least one of the two non-independent designees of FP appointed pursuant to Section 2.01(a) and at least one of the two non-independent designees of the CVC US Designator and a majority of the designees of the FP Designator; provided that in the event that either of the CVC US Designator or the FP Designator, has the right to designate fewer than three directors Entities appointed pursuant to Section 2.01 hereof2.01(a), a quorum provided that the Institutional Shareholders together shall exist if have the right at least one Core Director designated by any time to increase the number of directors necessary to constitute such Person is presentquorum.
(b) All actions of the Board shall require (i) the affirmative vote of at least a majority of the directors present at a duly convened meeting of the Board at which a quorum is present or (ii) the unanimous written consent of the Board, provided that, in the event that there is a vacancy on the Board and an individual has been nominated to fill such vacancy, the first order of business shall be to fill such vacancy.
(c) The Board may create executive, compensation, audit audit, nominating and corporate governance and such other committees as it may determine. Except with respect to the audit committee, the (i) The Institutional Securityholders Shareholders together shall be entitled to majority representation on any committee created by the Board, half of which such majority representation shall consist of a Core Director any director or Directors directors designated by the CVC US Designator FP to serve on such committee and half of which such majority representation shall consist of a Core Director any director or Directors designated by the FP Designator, (ii) CVC Asia Pacific Investors or their Permitted Transferees shall be entitled to minority representation on each committee created by the Board, and (iii) Company and each Core Shareholder entitled to vote for the election of the chairman of any committee (in its capacity as a Securityholder, director of the Board, member of a committee, or otherwise) created by the Board will take all necessary action to ensure that the chairman of such committee is a director directors designated by the CVC US Designator Entities to serve on such committee, provided that if rules or regulations of the SEC or the FP Designator in accordance with Section 2.01, in each case until such time as the committee members designated by such Core Shareholders are required to be removed as a result of the Company no longer qualifying as a “controlled company” (within the meaning of the principal securities exchange or quotation system on which the Common Shares are Stock is traded require any committee to consist of one or quoted and solely in connection with the ownership of Common Shares more "independent directors" (as such term is defined by the Core Shareholders).
(d) Until such time as the Company no longer qualifies as a “controlled company” (within the meaning rules of the principal securities exchange or quotation system on which the Common Shares are traded or quoted and solely in connection with the ownership of Common Shares by the Core ShareholdersStock is traded), no the directors designated to serve on such committee by FP or the CVC Entities shall be "independent directors" to the extent required to meet such applicable rules or regulations.
(d) No action by the Company (including but not limited to any action by the Board or any committee thereof) shall be taken after the date hereof with respect to any of the following matters without the affirmative approval of the Board and either Board, including the CVC US Securityholder Representative or affirmative approval of at least one of the two non-independent designees of FP Securityholder Representative, in each case, in its capacity as agent for Persons comprising CVC US and FP, in each case, in its capacity as a Securityholder; provided that the vote of a Core Director designated by the CVC US Designator or the FP Designator in favor of any action for which approval is required appointed pursuant to this Section 2.05(d2.01(a) shall constitute and at least one of the consent two non-independent designees of the CVC US Securityholder Representative (in the case of a vote of a director designated by the CVC US Designator) and the FP Securityholder Representative (in the case of a vote of a director designated by the FP Designator) in its capacity as agent for Persons comprising CVC US and FP, in each case, in its capacity as a Securityholder:Entities appointed pursuant to Section 2.01(a):
(1) any merger or consolidation of the Company with or into any Person, other than a wholly owned Subsidiary, or of any Subsidiary with or into any Person other than the Company or any other wholly owned Subsidiary, or (2) any sale of the Company or any Subsidiary or any significant operations of the Company or any Subsidiary or any joint venture transaction, acquisition or disposition of assets, business, operations or securities by the Company or any Subsidiary (in a single transaction or a series of related transactions) having a value in each case in this clause (2) in excess of $3,000,000,10,000,000;
(ii) the declaration of any dividend on or the making of any distribution with respect to, or the recapitalization, reclassification, redemption, repurchase or other acquisition of, any securities of the Company or any Subsidiary, except as expressly permitted by this Agreement,;
(iii) any liquidation, dissolution, commencement of bankruptcy, liquidation or similar proceedings with respect to the Company or any Subsidiary,;
(iv) any incurrence, refinancing, alteration of material terms or prepayment by the Company or any Subsidiary of indebtedness for borrowed money in excess of $2,000,000 10,000,000 in the aggregate (or the guaranty by the Company or any Subsidiary of any such indebtedness), or the issuance of any security by the Company or any Subsidiary (not including issuances of such securities in connection with employee or stock option plans previously approved by the Board pursuant to clause (vii) belowBoard), in each case other than (1) pursuant to the Credit Agreement, dated December 21, 2000, among AMI Merger Company, Inc., AMI Spinco, Inc., AMI Holdings, Inc., the lenders named therein and Credit Suisse First Boston as administrative agent and collateral agent, as amended and in effect from time to time, provided that the aggregate indebtedness under such agreement shall not exceed $250,000,000 and (2) as specifically contemplated by this Agreement,;
(v) any capital expenditure or capital lease in excess of $1,000,000 which is not specifically contemplated by the annual business plan of the Company or any Subsidiary,
(vi) any entering into, amending or modifying in any material respect of any agreements of the Company or any Subsidiary providing for payments by or to the Company or such Subsidiary in excess of $2,000,000 per annum or $5,000,000 in the aggregate,
(vii) any determination of compensation, benefits, perquisites and other incentives for (a) senior management the Chief Executive Officer or (b) any other employee whose annual compensation is or will be as a result of such determination in excess of $100,000 per year, the Chief Financial Officer of the Company or its Subsidiaries and the approval or amendment of any plans or contracts in connection therewith, and any approval or amendment to any equity or other compensation or benefit plans for employees of the Company or its Subsidiaries,;
(viiivi) any appointment or dismissal of any of the Chairman of the Board, Chief Executive Officer, President, Chief Financial Officer or Chief Operating Officer or any other executive officer in any similar capacity of the Company or any Subsidiary,;
(ix) any change in accounting or tax principles, policies with respect to the financial statements, records or affairs of the Company or any Subsidiary, except as required by generally accepted accounting principles or by law or any other matters that could affect any regulatory status or tax liability of the Company or any Subsidiary, or any Securityholder with respect to the investment by such Securityholder in the Company,
(x) any appointment or removal of the auditors, regular legal counsel, financial advisors, underwriters (except underwriters selected as provided in the first sentence of Section 5.04(f), unless such Demand Registration constitutes a First Public Offering), investment bankers or company-wide insurance providers of the Company or any Subsidiary,
(xivii) any amendment to this Agreement, any exercise or waiver of the Company’s 's rights under this Agreement, any amendment to an Organizational Document the Charter or similar organizational documents Bylaws or any adoption of or amendment to the certificate of incorporation or bylaws of any Subsidiary,;
(xiiviii) any approval of the annual business plan, budget and long-term strategic plan of the Company or any Subsidiary,;
(xiiiix) any modification of the long-term business strategy or scope of the business of the Company or any Subsidiary or any material customer relationships thereof,; or
(xivx) any increase or decrease to the number of directors Directors that comprise the entire Board of the Company or board of directors of any Subsidiary,
(xv) any entry into or modification of any contract with a labor union (including any collective bargaining agreement),
(xvi) any entry into or modification of any contract with, obligation to or transaction or series of transactions between (1) the Company or any Subsidiary and (2) Hynix or any controlled Affiliate of Hynix, or
(xvii) any contract with, obligation to or transaction or series of transactions between, the Company or any Subsidiary and one or more of its securityholders or their Affiliates.
Appears in 2 contracts
Sources: Shareholder Agreement (Amis Holdings Inc), Shareholder Agreement (Amis Holdings Inc)
Action by the Board. The Core Shareholders and the Company agree that:
(a) A quorum of the Board and the applicable Subsidiary Board shall consist of a majority of the total number Directors (including at least two (2) Investor Directors) then in office. If notice of directorsthe board meeting has been duly delivered to all directors of the Board or the applicable Subsidiary Board prior to the scheduled meeting, which or if such majority notice is duly waived, in each case in accordance with the notice procedure under the charter documents of the applicable Group Company, and the quorum of the Board or the applicable Subsidiary Board is not present within one (1) hour of the time appointed for a meeting due to the absence of any Investor Director, the meeting shall include be adjourned to the same place and time three (3) Business Days after the original date set for such meeting; provided that written notice of the adjourned meeting shall be given to all directors of the Board or the applicable Subsidiary Board at least one (1) Business Day before such meeting. If a quorum of the Board or the applicable Subsidiary Board is not present within one (1) hour of the time appointed for such adjourned meeting due to the absence of any Investor Director, the presence of a majority of the designees Directors, regardless of the CVC US Designator and presence or absence of any Investor Director, shall constitute a majority of the designees of the FP Designator; provided that in the event that either of the CVC US Designator or the FP Designator, has the right to designate fewer than three directors pursuant to Section 2.01 hereof, a quorum shall exist if at least one Core Director designated by such Person is presentquorum.
(b) All Subject to Section 2.10 and Section 2.11, all actions of the Board and each Subsidiary Board shall require (i) the affirmative vote of at least a majority of the Directors (or the directors of such Subsidiary Board, as the case may be) present at a duly convened meeting of the Board or such Subsidiary Board at which a quorum is present. By way of example, if twelve (12) Directors (or directors of such Subsidiary Board, as the case may be) are present or (ii) the unanimous written consent at a duly convened meeting of the Board or such Subsidiary Board at which a quorum is present, actions of the Board or such Subsidiary Board shall require the affirmative vote of at least seven (7) Directors (or directors of such Subsidiary Board, provided thatas the case may be) present, regardless of whether the other Directors voted against the action or abstained. Each Director (or directors of such Subsidiary Board, as the case may be) shall have one (1) vote. Nothing in the event that there is a vacancy on the Board and an individual has been nominated to fill such vacancy, the first order of business this Section 2.09(b) shall be construed to fill such vacancyrequire that any Subsidiary Board must consist of more than one (1) person. Notwithstanding anything herein to the contrary, any action that may be taken by the Directors at a meeting may be taken by a written resolution signed by all of the Directors.
(c) The A Board meeting may create executivebe held either in a physical location or telephonically. If held in a physical location, compensation, audit and such other committees the Board meeting shall be held in a location as it may determine. Except with respect be agreed by a majority of the Directors then in office (including at least two (2) Investor Directors) that takes into account the potential Tax consequences to the audit committeeCompany (taking into account the residency of the Directors), and any Director that is not able to attend the (i) Institutional Securityholders together meeting physically shall be entitled to majority representation on any committee created participate by the Board, half telephone conference or other communications equipment by means of which such majority representation shall consist of a Core Director or all the Directors designated by the CVC US Designator and half of which such majority representation shall consist of a Core Director or Directors designated by the FP Designator, (ii) CVC Asia Pacific Investors or their Permitted Transferees shall be entitled to minority representation on each committee created by the Board, and (iii) Company and each Core Shareholder entitled to vote for the election of the chairman of any committee (in its capacity as a Securityholder, director of the Board, member of a committee, or otherwise) created by the Board will take all necessary action to ensure that the chairman of such committee is a director designated by the CVC US Designator or the FP Designator in accordance with Section 2.01, in each case until such time as the committee members designated by such Core Shareholders are required to be removed as a result of the Company no longer qualifying as a “controlled company” (within the meaning of the principal securities exchange or quotation system on which the Common Shares are traded or quoted and solely in connection with the ownership of Common Shares by the Core Shareholders).
(d) Until such time as the Company no longer qualifies as a “controlled company” (within the meaning of the principal securities exchange or quotation system on which the Common Shares are traded or quoted and solely in connection with the ownership of Common Shares by the Core Shareholders), no action by the Company (including but not limited to any action by the Board or any committee thereof) shall be taken after the date hereof with respect to any of the following matters without the affirmative approval of the Board and either the CVC US Securityholder Representative or the FP Securityholder Representative, in each case, in its capacity as agent for Persons comprising CVC US and FP, in each case, in its capacity as a Securityholder; provided that the vote of a Core Director designated by the CVC US Designator or the FP Designator in favor of any action for which approval is required pursuant to this Section 2.05(d) shall constitute the consent of the CVC US Securityholder Representative (participating in the case of a vote of a director designated by meeting can communicate with each other at the CVC US Designator) and the FP Securityholder Representative (in the case of a vote of a director designated by the FP Designator) in its capacity as agent for Persons comprising CVC US and FP, in each case, in its capacity as a Securityholder:
(1) any merger or consolidation of the Company with or into any Person, other than a wholly owned Subsidiary, or of any Subsidiary with or into any Person other than the Company or any other wholly owned Subsidiary, or (2) any sale of the Company or any Subsidiary or any significant operations of the Company or any Subsidiary or any joint venture transaction, acquisition or disposition of assets, business, operations or securities by the Company or any Subsidiary (in a single transaction or a series of related transactions) having a value in each case in this clause (2) in excess of $3,000,000,
(ii) the declaration of any dividend on or the making of any distribution with respect to, or the recapitalization, reclassification, redemption, repurchase or other acquisition of, any securities of the Company or any Subsidiary, except as expressly permitted by this Agreement,
(iii) any liquidation, dissolution, commencement of bankruptcy, liquidation or similar proceedings with respect to the Company or any Subsidiary,
(iv) any incurrence, refinancing, alteration of material terms or prepayment by the Company or any Subsidiary of indebtedness for borrowed money in excess of $2,000,000 in the aggregate (or the guaranty by the Company or any Subsidiary of any such indebtedness), or the issuance of any security by the Company or any Subsidiary (not including issuances of such securities in connection with employee or stock option plans previously approved by the Board pursuant to clause (vii) below), in each case other than as specifically contemplated by this Agreement,
(v) any capital expenditure or capital lease in excess of $1,000,000 which is not specifically contemplated by the annual business plan of the Company or any Subsidiary,
(vi) any entering into, amending or modifying in any material respect of any agreements of the Company or any Subsidiary providing for payments by or to the Company or such Subsidiary in excess of $2,000,000 per annum or $5,000,000 in the aggregate,
(vii) any determination of compensation, benefits, perquisites and other incentives for (a) senior management or (b) any other employee whose annual compensation is or will be as a result of such determination in excess of $100,000 per year, of the Company or its Subsidiaries and the approval or amendment of any plans or contracts in connection therewith, and any approval or amendment to any equity or other compensation or benefit plans for employees of the Company or its Subsidiaries,
(viii) any appointment or dismissal of any of the Chairman of the Board, Chief Executive Officer, President, Chief Financial Officer or Chief Operating Officer or any other executive officer in any similar capacity of the Company or any Subsidiary,
(ix) any change in accounting or tax principles, policies with respect to the financial statements, records or affairs of the Company or any Subsidiary, except as required by generally accepted accounting principles or by law or any other matters that could affect any regulatory status or tax liability of the Company or any Subsidiary, or any Securityholder with respect to the investment by such Securityholder in the Company,
(x) any appointment or removal of the auditors, regular legal counsel, financial advisors, underwriters (except underwriters selected as provided in the first sentence of Section 5.04(f), unless such Demand Registration constitutes a First Public Offering), investment bankers or company-wide insurance providers of the Company or any Subsidiary,
(xi) any amendment to this Agreement, any exercise or waiver of the Company’s rights under this Agreement, any amendment to an Organizational Document or similar organizational documents of any Subsidiary,
(xii) any approval of the annual business plan, budget and long-term strategic plan of the Company or any Subsidiary,
(xiii) any modification of the long-term business strategy or scope of the business of the Company or any Subsidiary or any material customer relationships thereof,
(xiv) any increase or decrease to the number of directors that comprise the entire Board of the Company or board of directors of any Subsidiary,
(xv) any entry into or modification of any contract with a labor union (including any collective bargaining agreement),
(xvi) any entry into or modification of any contract with, obligation to or transaction or series of transactions between (1) the Company or any Subsidiary and (2) Hynix or any controlled Affiliate of Hynix, or
(xvii) any contract with, obligation to or transaction or series of transactions between, the Company or any Subsidiary and one or more of its securityholders or their Affiliatessame time.
Appears in 2 contracts
Sources: Investor Rights Agreement (KE Holdings Inc.), Investor Rights Agreement (KE Holdings Inc.)
Action by the Board. The Core Shareholders and the Company agree that:
(a) A quorum Unless Synacor and Maxit otherwise agree in writing, meetings of the Board shall consist be held at least once every three (3) months. Regular meetings of the Board shall be held upon not less than seven (7) days prior notice to each Director; provided, however, that such notice may, as to a Director, be waived in writing by such Director. Special meetings of the Board may be called by a majority of the total number members of directorsthe Board. Special meetings of the Board shall be held upon not less than seventy-two (72) hours prior notice to each Director; provided, which however, that such majority shall include notice may, as to a Director, be waived in writing by such Director. Members of the Board may attend meetings of the Board either in person or telephonically.
(b) At least a majority of the designees Directors then in office, including at least [*], must be present in person or by telephone at any meeting of the CVC US Designator and a majority of the designees of the FP Designator; provided that Board in the event that either of the CVC US Designator or the FP Designator, has the right order to designate fewer than three directors pursuant to Section 2.01 hereof, constitute a quorum shall exist if for the transaction of business at least one Core Director designated by such Person is presentmeeting. [*] = CERTAIN INFORMATION HAS BEEN OMITTED AND FILED SEPARATELY WITH THE COMMISSION. CONFIDENTIAL TREATMENT HAS BEEN REQUESTED WITH RESPECT TO THE OMITTED PORTIONS.
(bc) All actions of the Board shall require (i) the affirmative vote of at least a majority of the directors votes cast by the Directors present at a duly convened meeting of the Board at which a quorum is present or, in lieu of a meeting, by the unanimous written consent of all members of the Board, with each Director having one vote; provided, however, that neither the JVCO nor any Subsidiary thereof (including the WFOE) shall (whether by merger, consolidation, recapitalization or otherwise) make, take, enter, cause or permit to occur, commit to, authorize or approve any of the following (iieach, a “Supermajority Decision”), and each party shall exercise its respective voting rights in respect of its Shares and shall exercise its other rights, in each case to procure that neither the JVCO nor any Subsidiary thereof (including the WFOE) shall (whether by merger, consolidation, recapitalization or otherwise) make, take, enter, cause or permit to occur, commit to, authorize or approve any of the following without (in addition to the receipt of all other applicable Necessary Corporate Approvals) the affirmative vote of a majority of the votes cast by the Directors present at a duly convened meeting of the Board at which a quorum is present, which majority shall include an affirmative vote cast by at least [*] or, in lieu of a meeting, by the unanimous written consent of the members of the Board, provided that, in the event that there is a vacancy on the Board and an individual has been nominated to fill such vacancy, the first order of business shall be to fill such vacancy.:
(c) The Board may create executive, compensation, audit and such other committees as it may determine. Except with respect to the audit committee, the (i) Institutional Securityholders together shall be entitled to majority representation on any committee created by change the Board, half primary line of which such majority representation shall consist of a Core Director or Directors designated by the CVC US Designator and half of which such majority representation shall consist of a Core Director or Directors designated by the FP Designator, (ii) CVC Asia Pacific Investors or their Permitted Transferees shall be entitled to minority representation on each committee created by the Board, and (iii) Company and each Core Shareholder entitled to vote for the election of the chairman of any committee (in its capacity as a Securityholder, director of the Board, member of a committee, or otherwise) created by the Board will take all necessary action to ensure that the chairman of such committee is a director designated by the CVC US Designator or the FP Designator in accordance with Section 2.01, in each case until such time as the committee members designated by such Core Shareholders are required to be removed as a result of the Company no longer qualifying as a “controlled company” (within the meaning of the principal securities exchange or quotation system on which the Common Shares are traded or quoted and solely in connection with the ownership of Common Shares by the Core Shareholders).
(d) Until such time as the Company no longer qualifies as a “controlled company” (within the meaning of the principal securities exchange or quotation system on which the Common Shares are traded or quoted and solely in connection with the ownership of Common Shares by the Core Shareholders), no action by the Company (including but not limited to any action by the Board or any committee thereof) shall be taken after the date hereof with respect to any of the following matters without the affirmative approval of the Board and either the CVC US Securityholder Representative or the FP Securityholder Representative, in each case, in its capacity as agent for Persons comprising CVC US and FP, in each case, in its capacity as a Securityholder; provided that the vote of a Core Director designated by the CVC US Designator or the FP Designator in favor of any action for which approval is required pursuant to this Section 2.05(d) shall constitute the consent of the CVC US Securityholder Representative (in the case of a vote of a director designated by the CVC US Designator) and the FP Securityholder Representative (in the case of a vote of a director designated by the FP Designator) in its capacity as agent for Persons comprising CVC US and FP, in each case, in its capacity as a Securityholder:
(1) any merger or consolidation of the Company with or into any Person, other than a wholly owned Subsidiary, or of any Subsidiary with or into any Person other than the Company or any other wholly owned Subsidiary, or (2) any sale of the Company or any Subsidiary or any significant operations of the Company or any Subsidiary or any joint venture transaction, acquisition or disposition of assets, business, operations or securities by the Company or any Subsidiary (in a single transaction or a series of related transactions) having a value in each case in this clause (2) in excess of $3,000,000,
(ii) the declaration of any dividend on or the making of any distribution with respect to, or the recapitalization, reclassification, redemption, repurchase or other acquisition of, any securities of the Company or any Subsidiary, except as expressly permitted by this Agreement,
(iii) any liquidation, dissolution, commencement of bankruptcy, liquidation or similar proceedings with respect to the Company or any Subsidiary,
(iv) any incurrence, refinancing, alteration of material terms or prepayment by the Company or any Subsidiary of indebtedness for borrowed money in excess of $2,000,000 in the aggregate (or the guaranty by the Company or any Subsidiary of any such indebtedness), or the issuance of any security by the Company or any Subsidiary (not including issuances of such securities in connection with employee or stock option plans previously approved by the Board pursuant to clause (vii) below), in each case other than as specifically contemplated by this Agreement,
(v) any capital expenditure or capital lease in excess of $1,000,000 which is not specifically contemplated by the annual business plan of the Company or any Subsidiary,
(vi) any entering into, amending or modifying in any material respect of any agreements of the Company or any Subsidiary providing for payments by or to the Company or such Subsidiary in excess of $2,000,000 per annum or $5,000,000 in the aggregate,
(vii) any determination of compensation, benefits, perquisites and other incentives for (a) senior management or (b) any other employee whose annual compensation is or will be as a result of such determination in excess of $100,000 per year, of the Company or its Subsidiaries and the approval or amendment of any plans or contracts in connection therewith, and any approval or amendment to any equity or other compensation or benefit plans for employees of the Company or its Subsidiaries,
(viii) any appointment or dismissal of any of the Chairman of the Board, Chief Executive Officer, President, Chief Financial Officer or Chief Operating Officer or any other executive officer in any similar capacity of the Company or any Subsidiary,
(ix) any change in accounting or tax principles, policies with respect to the financial statements, records or affairs of the Company or any Subsidiary, except as required by generally accepted accounting principles or by law or any other matters that could affect any regulatory status or tax liability of the Company or any Subsidiary, or any Securityholder with respect to the investment by such Securityholder in the Company,
(x) any appointment or removal of the auditors, regular legal counsel, financial advisors, underwriters (except underwriters selected as provided in the first sentence of Section 5.04(f), unless such Demand Registration constitutes a First Public Offering), investment bankers or company-wide insurance providers of the Company or any Subsidiary,
(xi) any amendment to this Agreement, any exercise or waiver of the Company’s rights under this Agreement, any amendment to an Organizational Document or similar organizational documents of any Subsidiary,
(xii) any approval of the annual business plan, budget and long-term strategic plan of the Company or any Subsidiary,
(xiii) any modification of the long-term business strategy or scope of the business of the Company or any of its Subsidiaries or make any other change in the business plan of the Company and its Subsidiaries;
(ii) create any Subsidiary of the Company;
(iii) enter into or change any related party transaction;
(iv) establish any equity incentive or bonus plan or issue any equity award or bonus;
(v) enter or materially change any officer, key employee or consulting arrangement with any officer, key employee or consultant of the Company or any material customer relationships thereof,of its Subsidiaries;
(vi) file any claim, action, suit or other proceeding with any Governmental Authority against any Person;
(vii) incur any indebtedness;
(viii) contribute any registered capital or make any shareholder loans to the WFOE, other than the first US$2 million contributed as registered capital or so loaned to the WFOE;
(ix) agree to any obligations of, or payments to, the Company in excess of $100,000;
(x) make any capital expenditures not included in the Budget;
(xi) agree to indemnification by the Company or any of its Subsidiaries with respect to infringements of proprietary rights;
(xii) license any patent, copyright, trade secret or other proprietary or intellectual property right to or from the Company or any of its Subsidiaries;
(xiii) agree to any provisions restricting or affecting the development, manufacture or distribution of the products or services of the Company or any of its Subsidiaries; or
(xiv) enter any increase or decrease agreement material to the number Company, any of directors that comprise its Subsidiaries or its shareholders not captured by the entire Board foregoing.
(d) Each of the Company or board members of directors the Board may consider the interests of the shareholder that appointed such Director to the Board in making any determination as a Director. [*] = CERTAIN INFORMATION HAS BEEN OMITTED AND FILED SEPARATELY WITH THE COMMISSION. CONFIDENTIAL TREATMENT HAS BEEN REQUESTED WITH RESPECT TO THE OMITTED PORTIONS.
(e) The Chairman shall have one vote as a Director at the time of any Subsidiary,vote and shall have one additional tie-breaking vote if required.
(xvf) A majority of the Directors present, whether or not a quorum is present, may adjourn any entry into or modification of any contract with a labor union (including any collective bargaining agreement),meeting to another time and place.
(xvig) any entry into or modification In the event a quorum is not present at a duly called meeting of any contract withthe Board, obligation such meeting shall be adjourned and postponed and notice of a second call for such meeting shall be sent to or transaction or series all Directors setting forth a time and place for the reconvening of transactions between the postponed meeting which is not more than fifteen (115) days after the Company or any Subsidiary and (2) Hynix or any controlled Affiliate of Hynix, or
(xvii) any contract with, obligation to or transaction or series of transactions betweendate initially set forth for the meeting. At such reconvened meeting, the Company or any Subsidiary and one or more of its securityholders or their Affiliatesquorum requirement shall be the same as set forth in Section 2.11(b) hereof.
Appears in 1 contract
Action by the Board. The Core Shareholders and the Company agree that:
(a) A quorum of the Board shall consist of a majority of the total number of directorsExcept as otherwise provided in this Section 2.05, which such majority shall include a majority of the designees of the CVC US Designator and a majority of the designees of the FP Designator; provided that in the event that either of the CVC US Designator or the FP Designator, has the right to designate fewer than three directors pursuant to Section 2.01 hereof, a quorum shall exist if at least one Core Director designated by such Person is present.
(b) All all actions of the Board shall will require (i) the affirmative vote of at least a majority of the directors present at a duly convened meeting of the Board at which a quorum is present or (ii) the unanimous written consent of the Board, provided that, in the event that there is a vacancy on the Board and an individual has been designated or nominated to fill such vacancy, the first order of business shall will be to fill such vacancy.
(cb) The Board may create executive, compensation, audit and such other committees as it may determine. Except with respect to the audit committee, the (i) Institutional Securityholders together shall Trinity and Intersouth will each be entitled to majority representation have at least one designee on any committee created by the Board, half of which such majority representation shall consist of a Core Director or Directors designated by the CVC US Designator and half of which such majority representation shall consist of a Core Director or Directors designated by the FP Designator, (ii) CVC Asia Pacific Investors or their Permitted Transferees shall be entitled to minority representation on each committee created by the Board, and (iii) Company and each Core Shareholder entitled to vote for the election of the chairman of any committee (in its capacity as a Securityholder, director of the Board, member of a committee, or otherwise) created by the Board will take all necessary action to ensure that the chairman of such committee is a director designated by the CVC US Designator or the FP Designator in accordance with Section 2.01, in each case until such time as the committee members designated by such Core Shareholders are required to be removed as a result of the Company no longer qualifying as a “controlled company” (within the meaning of the principal securities exchange or quotation system on which the Common Shares are traded or quoted and solely in connection with the ownership of Common Shares by the Core Shareholders).
(dc) Until such time as the Company no longer qualifies as a “controlled company” (within the meaning of the principal securities exchange or quotation system on which the Common Shares are traded or quoted and solely in connection with the ownership of Common Shares by the Core Shareholders), no No action by the Company (including but not limited to any action by the Board or any committee thereof) shall SciQuest Holdings will be taken after the date hereof with respect to any of the following matters without the affirmative approval of the Board and either Board, including the CVC US Securityholder Representative or the FP Securityholder Representative, in each case, in its capacity as agent for Persons comprising CVC US and FP, in each case, in its capacity as a Securityholder; provided that the vote affirmative approval of a Core Director designated by the CVC US Designator or the FP Designator in favor of any action for which approval is required pursuant to this Section 2.05(d) shall constitute the consent at least two-thirds of the CVC US Securityholder Representative (in directors serving on the case Board at the time of a vote of a director designated by the CVC US Designator) and the FP Securityholder Representative (in the case of a vote of a director designated by the FP Designator) in its capacity as agent for Persons comprising CVC US and FP, in each case, in its capacity as a Securityholderapproval:
(1i) (A) any merger or consolidation of the Company SciQuest Holdings with or into any Person, other than a its wholly owned Subsidiary, or of any Subsidiary of SciQuest Holdings with or into any Person other than the Company SciQuest Holdings or any other wholly owned SubsidiarySubsidiary of SciQuest Holdings, or (2B) except as contemplated in Section 4.02, any sale of the Company SciQuest Holdings or any Subsidiary of SciQuest Holdings or any significant operations of the Company SciQuest Holdings or any Subsidiary of SciQuest Holdings or any joint venture transaction, acquisition or disposition of assets, business, operations or securities by the Company SciQuest Holdings or any Subsidiary of SciQuest Holdings (in a single transaction or a series of related transactions) having a value in each case in this clause (2B) in excess of $3,000,00010,000,000,
(ii) the declaration of any dividend on or the making of any distribution with respect to, or the recapitalization, reclassification, redemption, repurchase or other acquisition of, any securities of the Company SciQuest Holdings or any Subsidiaryof its Subsidiaries, except as expressly permitted by this Agreement,
(iii) any liquidation, dissolution, commencement of bankruptcy, liquidation or similar proceedings with respect to the Company SciQuest Holdings or any Subsidiaryof its Subsidiaries,
(iv) any incurrence, refinancing, alteration of material terms or prepayment by the Company SciQuest Holdings or any Subsidiary of its Subsidiaries of indebtedness for borrowed money in excess of $2,000,000 7,000,000 in the aggregate (or the guaranty by the Company SciQuest Holdings or any Subsidiary of its Subsidiaries of any such indebtedness), or the issuance of any security by the Company SciQuest Holdings or any Subsidiary of its Subsidiaries (not including issuances of such securities in connection with employee or stock option plans previously approved by the Board pursuant to clause (vii) below), in each case other than as specifically contemplated by this Agreement,
(v) any capital expenditure or capital lease in excess of $1,000,000 500,000 which is not specifically contemplated by the annual business plan of the Company SciQuest Holdings or any Subsidiaryof its Subsidiaries,
(vi) any entering into, amending or modifying in any material respect of any agreements of the Company SciQuest Holdings or any Subsidiary of its Subsidiaries providing for payments by or to the Company SciQuest Holdings or such Subsidiary in excess of $2,000,000 250,000 per annum or $5,000,000 1,000,000 in the aggregate,;
(vii) any determination of compensation, benefits, perquisites and other incentives for (a) senior management or (b) any other employee whose annual compensation is or will be as a result of such determination in excess of $100,000 per year, of the Company SciQuest Holdings or its Subsidiaries and the approval or amendment of any plans or contracts in connection therewith, and any approval or amendment to any equity or other compensation or benefit plans for employees of the Company SciQuest Holdings or its Subsidiaries,
(viii) any appointment or dismissal of any of the Chairman of the Board, Chief Executive Officer, President, Chief Financial Officer or Chief Operating Officer or any other executive officer in any similar capacity of the Company SciQuest Holdings or any Subsidiaryits Subsidiaries,
(ix) any change in accounting or tax principles, policies with respect to the financial statements, records or affairs of the Company SciQuest Holdings or any Subsidiaryof its Subsidiaries, except as required by generally accepted accounting principles or by law or any other matters that could affect any regulatory status or tax liability of the Company SciQuest Holdings or any Subsidiaryof its Subsidiaries, or any Securityholder Stockholder with respect to the investment by such Securityholder Stockholder in the CompanySciQuest Holdings,
(x) any appointment or removal of the auditors, regular legal counsel, financial advisors, underwriters (except underwriters selected as provided in the first sentence of Section 5.04(f), unless such Demand Registration constitutes a First Public Offering)underwriters, investment bankers or company-wide insurance providers of the Company SciQuest Holdings or any Subsidiaryof its Subsidiaries,
(xi) any amendment to this AgreementAgreement (including, without limitation, any amendment increasing or decreasing the number of directors that comprise the entire Board in accordance with Section 2.01), any exercise or waiver of the CompanySciQuest Holdings’ or SciQuest’s rights under this Agreement, any amendment to an Organizational Document the Charter or similar organizational documents Bylaws or any adoption of or amendment to the certificate of incorporation or bylaws of any SubsidiarySubsidiary of SciQuest Holdings,
(xii) any approval of the annual business plan, budget and long-term strategic plan of the Company SciQuest Holdings or any Subsidiaryof its Subsidiaries,
(xiii) any modification of the long-term business strategy or scope of the business of the Company SciQuest Holdings or any Subsidiary of its Subsidiaries or any material customer relationships thereof,
(xiv) any increase authorize, create or decrease to the number of directors that comprise the entire Board of the Company or board of directors issue shares of any Subsidiary,
(xv) any entry into or modification of any contract with a labor union (including any collective bargaining agreement),
(xvi) any entry into or modification of any contract with, obligation to or transaction class or series of transactions between (1) stock having any preference or priority superior to or on a parity with any such preference or priority of the Company or any Subsidiary and (2) Hynix or any controlled Affiliate of HynixPreferred Stock, or
(xviixv) any contract with, obligation to or transaction or series of transactions between, the Company SciQuest Holdings or any Subsidiary of its Subsidiaries and one or more of its securityholders their stockholders or their Affiliates.
Appears in 1 contract
Sources: Shareholder Agreement (Sciquest Inc)
Action by the Board. The Core Shareholders and the Company agree that:
(a) A quorum of the Board shall consist of a majority of the total number of directors, which provided that such majority shall include a majority of at least one director designated by the designees of Quadrangle Entities who is not an Independent Director for so long as the CVC US Designator and a majority of the designees of the FP Designator; provided that in the event that either of the CVC US Designator or the FP Designator, has the right Quadrangle Entities are entitled to designate fewer than three one or more directors pursuant to Section 2.01 hereof, a quorum shall exist if at least one Core Director designated by such Person is present.
(b) All actions of the Board shall require (i) the affirmative vote of at least a majority of the directors present at a duly convened meeting of the Board at which a quorum is present (in person or telephonically) or (ii) the unanimous written consent of the Board, provided that, in the event that there is a vacancy on the Board and an individual has been nominated to fill such vacancy, the first order of business shall be to fill such vacancy.
(c) The Board may create executive, compensation, audit and such other committees as it may determine. Except with respect To the extent permitted by the applicable rules and regulations from time to time promulgated by the NASDAQ Stock Market and the SEC, the Quadrangle Entities shall have the right to designate a number of directors comprising each such committee that is proportionate to the audit committee, the (i) Institutional Securityholders together shall be number of directors that such Shareholder is entitled to majority representation on designate pursuant to Section 2.01 (such number to be rounded up or down as appropriate to the nearest whole number); provided that no such Shareholder shall have the right to designate any committee created by the Board, half of which such majority representation shall consist of a Core Director or Directors designated by the CVC US Designator and half of which such majority representation shall consist of a Core Director or Directors designated by the FP Designator, (ii) CVC Asia Pacific Investors or their Permitted Transferees shall be entitled to minority representation on each committee created by the Board, and (iii) Company and each Core Shareholder entitled to vote for the election of the chairman of any committee (in its capacity as a Securityholder, director of the Board, member of a committee, or otherwise) created by the Board will take all necessary action to ensure that the chairman of such special committee is a director designated by the CVC US Designator or the FP Designator in accordance with Section 2.01, in each case until such time as the committee members designated by such Core Shareholders are required to be removed as a result of the Company no longer qualifying as a “controlled company” (within the meaning of the principal securities exchange or quotation system on which the Common Shares are traded or quoted and solely formed in connection with any transaction, or proposed transaction, between the ownership Company or any Subsidiary, on the one hand, and such Shareholder or an Affiliate of Common Shares by such Shareholder, on the Core Shareholders)other hand.
(d) Until such time as the Company no longer qualifies as a “controlled company” (within the meaning of the principal securities exchange or quotation system on which the Common Shares are traded or quoted and solely in connection with the ownership of Common Shares by the Core Shareholders), no No action by the Company (including but not limited to any action by the Board or any committee thereof) shall be taken after the date hereof hereof, and the Company shall not permit any action to be taken by any Subsidiary or any Joint Venture (but only, with respect to any Joint Venture, to the extent that the Company or a Subsidiary has the right pursuant to the terms of such Joint Venture to not permit such action to be taken), with respect to any of the following matters without the affirmative approval of the Board and either the CVC US Securityholder Representative or the FP Securityholder Representative, in each case, in its capacity as agent for Persons comprising CVC US and FP, in each case, in its capacity as a Securityholder; provided that the vote of a Core Director designated by the CVC US Designator or the FP Designator in favor of any action for which approval is required pursuant to this Section 2.05(d) shall constitute the consent of the CVC US Securityholder Representative (in the case of a vote of a director designated by the CVC US Designator) and the FP Securityholder Representative (in the case of a vote of a director designated by the FP Designator) in its capacity as agent for Persons comprising CVC US and FP, in each case, in its capacity as a SecurityholderBoard:
(i) (1) any merger or consolidation of the Company Company, any Subsidiary or any Joint Venture with or into any Person, other than a wholly owned Subsidiary, or of any Subsidiary or Joint Venture with or into any Person other than the Company or any other wholly owned Subsidiary, or (2) any sale of the Company or Company, any Subsidiary Subsidiary, any Joint Venture or any significant operations of the Company or Company, any Subsidiary or any joint venture transaction, Joint Venture or (3) any acquisition or disposition of assets, business, operations or securities by the Company Company, any Subsidiary or any Subsidiary Joint Venture (in a single transaction or a series of related transactions) having a value in each case in this clause (23) in excess of $3,000,000,;
(ii) the declaration of any dividend on or the making of any distribution with respect to, or the recapitalization, reclassification, redemption, repurchase or other acquisition of, any securities of the Company Company, any Subsidiary or any SubsidiaryJoint Venture, except (i) as expressly permitted by this Agreement,Agreement or the Charter and (ii) any dividend made from a Subsidiary of the Company to another Subsidiary of the Company or from a Subsidiary of the Company to the Company;
(iii) any liquidation, dissolution, commencement of bankruptcy, liquidation or similar proceedings with respect to the Company Company, any Subsidiary or any Subsidiary,Joint Venture;
(iv) any incurrence, refinancing, alteration of material terms or prepayment by the Company Company, any Subsidiary or any Subsidiary Joint Venture of indebtedness for borrowed money in excess of $2,000,000 in the aggregate (or the guaranty by the Company Company, any Subsidiary or any Subsidiary Joint Venture of any such indebtedness), or the issuance or registration with the SEC of any security by the Company Company, any Subsidiary or any Subsidiary Joint Venture, in each case other than (not including issuances of such securities i) pursuant to the credit agreement being entered into in connection with the Spin-off and approved by the board of directors of NTELOS, and any future amendments or refinancings thereof authorized by the NTELOS board of directors at the time of the entry into of such credit agreement, (ii) pursuant to any employee or stock option plans previously approved by the Board pursuant to clause in compliance with this Section 2.05(d) or (viiiii) below), in each case other than as specifically contemplated by this Agreement,;
(v) any individual or related series of capital expenditures or capital leases which are inconsistent in any material respect with the annual capital expenditure or capital lease in excess of $1,000,000 which is not specifically contemplated budget approved by the annual business plan of the Company or any Subsidiary,Board in compliance with this Section 2.05(d);
(vi) any entering into, amending or modifying in any material respect of any agreements agreement of the Company Company, any Subsidiary or any Subsidiary providing for payments by or Joint Venture, which is made outside the ordinary course of business and is material to the Company or such Subsidiary in excess of $2,000,000 per annum or $5,000,000 in the aggregate,and its Subsidiaries as a whole;
(vii) any entering into of any agreement, indenture or other instrument that contains any provision that would restrict either the payment of dividends on the Common Stock;
(viii) any determination of compensation, benefits, perquisites and or other incentives for (a) senior management or (b) any other employee whose annual compensation is or will be as a result of such determination in excess of $100,000 per year, executive officers of the Company Company, any Subsidiary or its Subsidiaries and any Joint Venture or the approval or amendment of any plans or contracts in connection therewith, and any approval of or amendment to any equity or other compensation or benefit plans for employees of the Company Company, Subsidiary or its Subsidiaries,any Joint Venture or the grant of any stock option or other equity compensation to any employee of the Company, any Subsidiary or any Joint Venture, other than any such determinations, amendments or grants (i) required by law, (ii) to satisfy agreements currently in place or deliver the benefits intended thereunder or (iii) to renew insurance or administrative service contracts relating to benefits plans if such renewals come due in the ordinary course;
(viiiix) any appointment or dismissal of any of the Chairman of the Board, Chief Executive Officer, President, Chief Financial Officer or Officer, Chief Operating Officer Officer, any division head or any other executive officer in any similar capacity of the Company Company, any Subsidiary or any Subsidiary,
(ix) any change in accounting or tax principles, policies with respect to the financial statements, records or affairs of the Company or any Subsidiary, except as required by generally accepted accounting principles or by law or any other matters that could affect any regulatory status or tax liability of the Company or any Subsidiary, or any Securityholder with respect to the investment by such Securityholder in the Company,Joint Venture;
(x) any appointment or removal of the auditors, regular legal counsel, financial advisors, underwriters (except underwriters selected as provided in the first sentence of Section 5.04(f), unless such Demand Registration constitutes a First Public Offering)underwriters, investment bankers or or, other than in connection with renewals of coverage at comparable levels in the ordinary course, company-wide insurance providers of the Company Company, any Subsidiary or any Subsidiary,Joint Venture;
(xi) any amendment to this Agreement, any exercise or waiver of the Company’s rights under this Agreement, any amendment to an Organizational Document the Charter or similar Bylaws or any adoption of or amendment to the certificate of incorporation, bylaws or other organizational documents of any Subsidiary,Subsidiary or Joint Venture;
(xii) any approval of the annual business plan, budget, capital expenditure budget and or long-term strategic plan of the Company Company, any Subsidiary or any Subsidiary,Joint Venture;
(xiii) any modification of the long-term business strategy or scope of the business of the Company or Company, any Subsidiary or any material customer relationships thereof,Joint Venture;
(xiv) any increase or decrease to the number of directors that comprise the entire Board of the Company or board of directors or similar governing body of the Company, any Subsidiary,Subsidiary or any Joint Venture;
(xv) any entry into or modification of any contract with a labor union (including any collective bargaining agreement),
(xvi) any entry into or modification of any contract with, obligation to or transaction or series of transactions between (1) the Company or any Subsidiary and (2) Hynix or any controlled Affiliate of Hynix, or
(xvii) any contract with, obligation to or transaction or series of transactions between, the Company Company, any Subsidiary or any Subsidiary Joint Venture, on the one hand, and one or more of its securityholders stockholders, other equityholders or their respective Affiliates, on the other hand;
(xvi) any initiation or settlement of any material litigation, arbitration, mediation or other dispute resolution proceeding outside of the ordinary course of business; or
(xvii) the entry into, or the termination, disposition or material amendment of the terms of, any Joint Venture.
Appears in 1 contract
Action by the Board. The Core Shareholders and the Company agree that:
(a) A quorum of the Board shall consist of a majority of the total number of directors, which provided that such majority shall include a majority of at least two directors designated by the designees of Quadrangle Entities and at least two directors designated by the CVC US Designator and a majority of the designees of the FP Designator; provided that in the event that either of the CVC US Designator or the FP Designator, has the right to designate fewer than three directors pursuant to Section 2.01 hereof, a quorum shall exist if at least one Core Director designated by such Person is presentEntities.
(b) All actions of the Board shall require (i) the affirmative vote of at least a majority of the directors present at a duly convened meeting of the Board at which a quorum is present (in person or telephonically), provided that such majority shall include at least two directors designated by the Quadrangle Entities and at least two directors designated by the CVC Entities or (ii) the unanimous written consent of the Board, provided that, in the event that there is a vacancy on the Board and an individual has been nominated to fill such vacancy, the first order of business shall be to fill such vacancy.
(c) The Board may create executive, compensation, audit and such other committees as it may determine. Except with respect The Quadrangle Entities and the CVC Entities shall have the right to designate a number of directors comprising each such committee that is proportionate to the audit committee, the (i) Institutional Securityholders together shall be number of directors that such Shareholders are entitled to majority representation on designate pursuant to Section 2.01; provided that no such Shareholder shall have the right to designate any committee created by the Board, half of which such majority representation shall consist of a Core Director or Directors designated by the CVC US Designator and half of which such majority representation shall consist of a Core Director or Directors designated by the FP Designator, (ii) CVC Asia Pacific Investors or their Permitted Transferees shall be entitled to minority representation on each committee created by the Board, and (iii) Company and each Core Shareholder entitled to vote for the election of the chairman of any committee (in its capacity as a Securityholder, director of the Board, member of a committee, or otherwise) created by the Board will take all necessary action to ensure that the chairman of such special committee is a director designated by the CVC US Designator or the FP Designator in accordance with Section 2.01, in each case until such time as the committee members designated by such Core Shareholders are required to be removed as a result of the Company no longer qualifying as a “controlled company” (within the meaning of the principal securities exchange or quotation system on which the Common Shares are traded or quoted and solely formed in connection with any transaction, or proposed transaction, between the ownership Company or any Subsidiary, on the one hand, and such Shareholder or an Affiliate of Common Shares by such Shareholder, on the Core Shareholders)other hand.
(d) Until such time as the Company no longer qualifies as a “controlled company” (within the meaning of the principal securities exchange or quotation system on which the Common Shares are traded or quoted and solely in connection with the ownership of Common Shares by the Core Shareholders), no No action by the Company (including but not limited to any action by the Board or any committee thereof) shall be taken after the date hereof hereof, and the Company shall not permit any action to be taken by any Subsidiary or any Joint Venture (but only, with respect to any Joint Venture, to the extent that the Company or a Subsidiary has the right pursuant to the terms of such Joint Venture to not permit such action to be taken), with respect to any of the following matters without the affirmative approval of the Board and either the CVC US Securityholder Representative or the FP Securityholder Representative, in each case, in its capacity as agent for Persons comprising CVC US and FP, in each case, in its capacity as Board:
(i) except with a Securityholder; provided that the vote of a Core Director designated by the CVC US Designator or the FP Designator in favor of any action for which approval is required transaction to be consummated pursuant to this Section 2.05(d) shall constitute the consent of the CVC US Securityholder Representative (in the case of a vote of a director designated by the CVC US Designator) and the FP Securityholder Representative (in the case of a vote of a director designated by the FP Designator) in its capacity as agent for Persons comprising CVC US and FP4.05, in each case, in its capacity as a Securityholder:
(1) any merger or consolidation of the Company Company, any Subsidiary or any Joint Venture with or into any Person, other than a wholly owned Subsidiary, or of any Subsidiary or Joint Venture with or into any Person other than the Company or any other wholly owned Subsidiary, or (2) any sale of the Company or Company, any Subsidiary Subsidiary, any Joint Venture or any significant operations of the Company or Company, any Subsidiary or any joint venture transaction, Joint Venture or (3) any acquisition or disposition of assets, business, operations or securities by the Company Company, any Subsidiary or any Subsidiary Joint Venture (in a single transaction or a series of related transactions) having a value in each case in this clause (23) in excess of $3,000,000,1,000,000;
(ii) the declaration of any dividend on or the making of any distribution with respect to, or the recapitalization, reclassification, redemption, repurchase or other acquisition of, any securities of the Company Company, any Subsidiary or any SubsidiaryJoint Venture, except (i) as expressly permitted by this Agreement,Agreement or the Charter and (ii) any dividend made from a Subsidiary of the Company to another Subsidiary of the Company or from a Subsidiary of the Company to the Company;
(iii) any liquidation, dissolution, commencement of bankruptcy, liquidation or similar proceedings with respect to the Company Company, any Subsidiary or any Subsidiary,Joint Venture;
(iv) any incurrence, refinancing, alteration of material terms or prepayment by the Company Company, any Subsidiary or any Subsidiary Joint Venture of indebtedness for borrowed money in excess of $2,000,000 in the aggregate (or the guaranty by the Company Company, any Subsidiary or any Subsidiary Joint Venture of any such indebtedness), or the issuance or registration with the SEC of any security by the Company Company, any Subsidiary or any Subsidiary Joint Venture, in each case other than (not including issuances i) pursuant to the First Lien Credit Agreement dated as of such securities February 24, 2005, among NTELOS Inc., the subsidiary guarantors named therein, the initial lenders, initial issuing bank and swing line bank each as named therein, ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ Senior Funding, Inc., as administrative agent, ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & Co. Incorporated, as collateral agent and Bear ▇▇▇▇▇▇▇ Corporate Lending Inc., as syndication agent, (ii) the Second Lien Credit Agreement dated as of February 24, 2005, among NTELOS Inc., the subsidiary guarantors named therein, the lenders named therein, ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ Senior Funding, Inc., as administrative agent, ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & Co. Incorporated, as collateral agent and Bear ▇▇▇▇▇▇▇ Corporate Lending Inc., as syndication agent, (iii) pursuant to any other revolving credit agreement previously approved by the Board in connection compliance with this Section 2.05(d), (iv) pursuant to any employee or stock option plans previously approved by the Board pursuant to clause in compliance with this Section 2.05(d) or (viiv) below), in each case other than as specifically contemplated by this Agreement,;
(v) any individual or related series of capital expenditures or capital leases which are inconsistent with the annual capital expenditure or capital lease in excess of $1,000,000 which is not specifically contemplated budget approved by the annual business plan of the Company or any Subsidiary,Board in compliance with this Section 2.05(d);
(vi) any entering into, amending or modifying in any material respect of any agreements agreement of the Company Company, any Subsidiary or any Subsidiary providing for payments by or Joint Venture, which is material to the Company or such Subsidiary in excess of $2,000,000 per annum or $5,000,000 in the aggregate,and its Subsidiaries as a whole;
(vii) any entering into of any agreement, indenture or other instrument that contains any provision that would restrict either the payment of dividends on the Common Stock or the repurchase of Class A Common Stock in accordance with Section 4.04;
(viii) any determination of compensation, benefits, perquisites and or other incentives for (a) senior management or (b) any other employee whose annual compensation is or will be as a result of such determination in excess of $100,000 per year, officers of the Company Company, any Subsidiary or its Subsidiaries and any Joint Venture or the approval or amendment of any plans or contracts in connection therewith, and any approval or amendment to any equity or other compensation or benefit plans for employees of the Company Company, Subsidiary or its Subsidiaries,any Joint Venture or the grant of any stock option or other equity compensation to any employee of the Company, any Subsidiary or any Joint Venture, other than any such determinations, amendments or grants (i) required by law, (ii) to satisfy agreements currently in place or deliver the benefits intended thereunder and (iii) renew insurance or administrative service contracts relating to benefits plans if such renewals come due in the ordinary course;
(viiiix) any appointment or dismissal of any of the Chairman of the Board, Chief Executive Officer, President, Chief Financial Officer or Officer, Chief Operating Officer Officer, any division head or any other executive officer in any similar capacity of the Company Company, any Subsidiary or any Subsidiary,Joint Venture;
(ixx) any change in accounting or tax principles, policies with respect to the financial statements, records or affairs of the Company Company, any Subsidiary or any SubsidiaryJoint Venture, except as required by generally accepted accounting principles or by law or any other matters that could affect any regulatory status or tax liability of the Company or any Subsidiary, such Subsidiary or any Securityholder with respect to the investment by such Securityholder in the Company,Joint Venture;
(xxi) any appointment or removal of the auditors, regular legal counsel, financial advisors, underwriters (except underwriters selected as provided in the first sentence of Section 5.04(f), unless such Demand Registration constitutes a First Public Offering)underwriters, investment bankers or company-wide insurance providers of the Company Company, any Subsidiary or any Subsidiary,Joint Venture;
(xixii) any amendment to this Agreement, any exercise or waiver of the Company’s rights under this Agreement, any amendment to an Organizational Document the Charter or similar Bylaws or any adoption of or amendment to the certificate of incorporation, bylaws or other organizational documents of any Subsidiary,Subsidiary or Joint Venture;
(xiixiii) any approval of the annual business plan, budget, capital expenditure budget and or long-term strategic plan of the Company Company, any Subsidiary or any Subsidiary,Joint Venture;
(xiiixiv) any modification of the long-term business strategy or scope of the business of the Company or Company, any Subsidiary or any material customer relationships thereof,Joint Venture;
(xivxv) any increase or decrease to the number of directors that comprise the entire Board of the Company or board of directors or similar governing body of the Company, any Subsidiary,
(xv) Subsidiary or any entry into or modification of any contract with a labor union (including any collective bargaining agreement),Joint Venture;
(xvi) any entry into or modification of any contract with, obligation to or transaction or series of transactions between (1) the Company or any Subsidiary and (2) Hynix or any controlled Affiliate of Hynix, or
(xvii) any contract with, obligation to or transaction or series of transactions between, the Company Company, any Subsidiary or any Subsidiary Joint Venture, on the one hand, and one or more of its securityholders stockholders, other equityholders or their respective Affiliates, on the other hand;
(xvii) any initiation or settlement of any significant litigation, arbitration, mediation or other dispute resolution proceeding;
(xviii) the taking of any significant action, including the making of any significant filing, with respect to any governmental or regulatory body, agency, official or authority, including applications for new regulatory licenses, requests for transfers or assignments of existing regulatory licenses or participation in material rulemakings or other policy proceedings; or
(xix) the entry into, or the termination, disposition or material amendment of the terms of, any Joint Venture.
Appears in 1 contract
Action by the Board. The Core Shareholders and the Company agree that:
(a) A quorum of the Board shall consist initially of five directors; provided, whenever more or less than eight directors are serving on the Board, a quorum shall consist of a majority of the total number of directors, which such majority shall include a majority of the designees of the CVC US Designator and a majority of the designees of the FP Designator; provided that in the event that either of the CVC US Designator or the FP Designator, has the right to designate fewer than three directors pursuant to Section 2.01 hereof, a quorum shall exist if at least one Core Director designated by such Person is present.
(b) then serving. All actions of the Board shall require (i) the affirmative vote of at least a majority of the directors present at a duly convened meeting of the Board at which a quorum is present or (ii) the unanimous written consent of the Board, ; provided that, in the event that there is a vacancy on the Board and an individual has been nominated to fill such vacancy, the first order of business shall be to fill such vacancy.
(c) The Board may create executive, compensation, audit and such other committees as it may determine. Except with respect to the audit committee, the (i) Institutional Securityholders together shall be entitled to majority representation on any committee created by the Board, half of which such majority representation shall consist of a Core Director or Directors designated by the CVC US Designator and half of which such majority representation shall consist of a Core Director or Directors designated by the FP Designator, (ii) CVC Asia Pacific Investors or their Permitted Transferees shall be entitled to minority representation on each committee created by the Board, and (iii) Company and each Core Shareholder entitled to vote for the election of the chairman of any committee (in its capacity as a Securityholder, director of the Board, member of a committee, or otherwise) created by the Board will take all necessary action to ensure that the chairman of such committee is a director designated by the CVC US Designator or the FP Designator in accordance with Section 2.01, in each case until such time as the committee members designated by such Core Shareholders are required to be removed as a result of the Company no longer qualifying as a “controlled company” (within the meaning of the principal securities exchange or quotation system on which the Common Shares are traded or quoted and solely in connection with the ownership of Common Shares by the Core Shareholders).
(db) Until such time as the Company no longer qualifies as a “controlled company” (within the meaning consummation of the principal securities exchange or quotation system on which the Common Shares are traded or quoted and solely in connection with the ownership of Common Shares by the Core Shareholders)an Initial Public Offering, no action by the Company (including but not limited to any action by the Board or any committee thereof) shall be taken after the date hereof with respect to any of the following matters without the affirmative approval of the Board and either Board, including, for so long as the CVC US Securityholder Representative or DLJ Entities own at least 50% of the FP Securityholder Representativenumber of shares of Common Stock owned thereby as of the date of this Agreement (treating, for these purposes, the Warrants on an as if exercised basis and, in each case, disregarding stock splits, recapitalizations and similar adjustments in its capacity number of shares and stock dividends), by the DLJMB Designee, for so long as agent the Summit-Investors own at least 33 1/3% of the number of shares of Common Stock owned thereby as of the date of this Agreement (in each case, disregarding stock splits, recapitalizations and similar adjustments in number of shares and stock dividends), by at least one Summit-Investor Designee, for Persons comprising CVC US and FPso long as Chase owns at least 50% of the number of shares of Common Stock owned thereby as of the date of this Agreement (treating, for these purposes, the Warrants on an as if exercised basis and, in each case, disregarding stock splits, recapitalizations and similar adjustments in its capacity as a Securityholder; provided that the vote number of a Core Director designated shares and stock dividends), by the CVC US Designator or Chase Designee, and for so long as the FP Designator in favor of any action for which approval is required pursuant to this Section 2.05(d) shall constitute the consent Wind▇ ▇▇▇▇ ▇▇▇estors own at least 50% of the CVC US Securityholder Representative number of shares of Common Stock owned thereby as of the date of this Agreement (in the case of a vote of a director designated by the CVC US Designator) and the FP Securityholder Representative (in the case of a vote of a director designated by the FP Designator) in its capacity as agent for Persons comprising CVC US and FP, in each case, disregarding stock splits, recapitalizations and similar adjustments in its capacity as a Securityholdernumber of shares and stock dividends), by at least one Wind▇ ▇▇▇▇ ▇▇▇ignee:
(1i) (x) any merger or consolidation of the Company with or into any Person, other than a wholly owned Subsidiary, or of any Subsidiary with or into any Person other than the Company or any other wholly wholly-owned Subsidiary, ; or (2y) any sale of the Company or any Subsidiary or any significant operations of the Company or any Subsidiary or any joint venture transaction, acquisition or disposition of assets, business, operations or securities by the Company or any Subsidiary (in a single transaction or a series of related transactions) having a value in each case in this clause (2y) in excess of $3,000,000,25,000,000;
(ii) the declaration of any dividend on or the making of any distribution with respect to, or the recapitalization, reclassification, redemption, repurchase or other acquisition of, any securities of the Company or any Subsidiary, except as expressly permitted by this Agreement,
Agreement or the Certificate of Designations of the Preferred Stock and except for repurchases of securities from individuals in connection with the termination of their employment; (iii) any liquidation, dissolution, commencement of bankruptcy, liquidation or similar proceedings with respect to the Company or any Subsidiary,
(iv) any incurrence, refinancing, alteration of material terms or prepayment by the Company or any Subsidiary of indebtedness for borrowed money in excess of $2,000,000 in the aggregate (or the guaranty by the Company or any Subsidiary of any such indebtedness), or the issuance of any security by the Company or any Subsidiary (not including issuances of such securities in connection with employee or stock option plans previously approved by the Board pursuant to clause (vii) below), in each case other than as specifically contemplated by this Agreement,
(v) any capital expenditure or capital lease in excess of $1,000,000 which is not specifically contemplated by the annual business plan of the Company or any Subsidiary,
(vi) any entering into, amending or modifying in any material respect of any agreements of the Company or any Subsidiary providing for payments by or to the Company or such Subsidiary in excess of $2,000,000 per annum or $5,000,000 in the aggregate,
(vii) any determination of compensation, benefits, perquisites and other incentives for (a) senior management or (b) any other employee whose annual compensation is or will be as a result of such determination in excess of $100,000 per year, of the Company or its Subsidiaries and the approval or amendment of any plans or contracts in connection therewith, and any approval or amendment to any equity or other compensation or benefit plans for employees of the Company or its Subsidiaries,
(viii) any appointment or dismissal of any of the Chairman of the Board, Chief Executive Officer, President, Chief Financial Officer or Chief Operating Officer or any other executive officer in any similar capacity of the Company or any Subsidiary,
(ix) any change in accounting or tax principles, policies with respect to the financial statements, records or affairs of the Company or any Subsidiary, except as required by generally accepted accounting principles or by law or any other matters that could affect any regulatory status or tax liability of the Company or any Subsidiary, or any Securityholder with respect to the investment by such Securityholder in the Company,
(x) any appointment or removal of the auditors, regular legal counsel, financial advisors, underwriters (except underwriters selected as provided in the first sentence of Section 5.04(f), unless such Demand Registration constitutes a First Public Offering), investment bankers or company-wide insurance providers of the Company or any Subsidiary,
(xi) any amendment to this Agreement, any exercise or waiver of the Company’s rights under this Agreement, any amendment to an Organizational Document or similar organizational documents of any Subsidiary,
(xii) any approval of the annual business plan, budget and long-term strategic plan of the Company or any Subsidiary,
(xiii) any modification of the long-term business strategy or scope of the business of the Company or any Subsidiary or any material customer relationships thereof,
(xiv) any increase or decrease to the number of directors that comprise the entire Board of the Company or board of directors of any Subsidiary,
(xv) any entry into or modification of any contract with a labor union (including any collective bargaining agreement),
(xvi) any entry into or modification of any contract with, obligation to or transaction or series of transactions between (1) the Company or any Subsidiary and (2) Hynix or any controlled Affiliate of Hynix, or
(xvii) any contract with, obligation to or transaction or series of transactions between, the Company or any Subsidiary and one or more of its securityholders or their Affiliates.;
Appears in 1 contract
Sources: Investors' Agreement (Doane Pet Care Enterprises Inc)
Action by the Board. The Core Shareholders and the Company agree that:
(a) A quorum of the Board shall consist of a majority of the total number of directors, which such majority shall include a majority of the designees of the CVC US Designator FP and a majority of the designees of the FP Designator; TBW, provided that in the event that either of the CVC US Designator or the FP Designator, has Institutional Shareholders together shall have the right at any time to designate fewer than three increase the number of directors pursuant necessary to Section 2.01 hereof, a quorum shall exist if at least one Core Director designated by constitute such Person is presentquorum.
(b) All actions of the Board shall require (i) the affirmative vote of at least a majority of the directors present at a duly convened meeting of the Board at which a quorum is present or (ii) the unanimous written consent of the Board, provided that, in the event that there is a vacancy on the Board and an individual has been nominated to fill such vacancy, the first order of business shall be to fill such vacancy.
(c) The Board may create executive, compensation, audit and such other committees as it may determine. Except with respect to the audit committee, the (i) The Institutional Securityholders Shareholders together shall be entitled to majority representation on any committee created by the Board, half of which such majority representation shall consist of a Core Director director or Directors directors designated by the CVC US Designator FP and half of which such majority representation shall consist of a Core Director director or Directors directors designated by the FP Designator, (ii) CVC Asia Pacific Investors or their Permitted Transferees shall be entitled to minority representation on each committee created by the Board, and (iii) Company and each Core Shareholder entitled to vote for the election of the chairman of any committee (in its capacity as a Securityholder, director of the Board, member of a committee, or otherwise) created by the Board will take all necessary action to ensure that the chairman of such committee is a director designated by the CVC US Designator or the FP Designator in accordance with Section 2.01, in each case until such time as the committee members designated by such Core Shareholders are required to be removed as a result of the Company no longer qualifying as a “controlled company” (within the meaning of the principal securities exchange or quotation system on which the Common Shares are traded or quoted and solely in connection with the ownership of Common Shares by the Core Shareholders)TBW.
(d) Until such time as the Company no longer qualifies as a “controlled company” (within the meaning of the principal securities exchange or quotation system on which the Common Shares are traded or quoted and solely in connection with the ownership of Common Shares by the Core Shareholders), no No action by the Company (including but not limited to any action by the Board or any committee thereof) shall be taken after the date hereof with respect to any of the following matters without the affirmative approval of the Board and either Board, including the CVC US Securityholder Representative or the FP Securityholder Representative, in each case, in its capacity as agent for Persons comprising CVC US and FP, in each case, in its capacity as a Securityholder; provided that the vote affirmative approval of a Core Director designated by the CVC US Designator or the FP Designator in favor of any action for which approval is required pursuant to this Section 2.05(d) shall constitute the consent majority of the CVC US Securityholder Representative (in designees of each of the case of a vote of a director designated by the CVC US Designator) and the FP Securityholder Representative (in the case of a vote of a director designated by the FP Designator) in its capacity as agent for Persons comprising CVC US and FP, in each case, in its capacity as a SecurityholderInstitutional Shareholders:
(1) any merger or consolidation of the Company with or into any Person, other than a wholly owned Subsidiary, or of any Subsidiary with or into any Person other than the Company or any other wholly owned Subsidiary, or (2) any sale of the Company or any Subsidiary or any significant operations of the Company or any Subsidiary or any joint venture transaction, acquisition or disposition of assets, business, operations or securities by the Company or any Subsidiary (in a single transaction or a series of related transactions) having a value in each case in this clause (2) in excess of $3,000,000,
(ii) the declaration of any dividend on or the making of any distribution with respect to, or the recapitalization, reclassification, redemption, repurchase or other acquisition of, any securities of the Company or any Subsidiary, except as expressly permitted by this Agreement,
(iii) any liquidation, dissolution, commencement of bankruptcy, liquidation or similar proceedings with respect to the Company or any Subsidiary,
(iv) any incurrence, refinancing, alteration of material terms or prepayment by the Company or any Subsidiary of indebtedness for borrowed money in excess of $2,000,000 in the aggregate (or the guaranty by the Company or any Subsidiary of any such indebtedness), or the issuance of any security by the Company or any Subsidiary (not including issuances of such securities in connection with employee or stock option plans previously approved by the Board pursuant to clause (vii) below), in each case other than (i) pursuant to the Credit Agreement, dated December 21, 2000, among AMI Merger Company, Inc., AMI Spinco, Inc., AMI Holdings, Inc., the lenders named therein and Credit Suisse First Boston as administrative agent and collateral agent, as amended and in effect from time to time, provided that the aggregate indebtedness under such agreement shall not exceed $250,000,000 and (ii) as specifically contemplated by this Agreement,
(v) any capital expenditure or capital lease in excess of $1,000,000 which is not specifically contemplated by the annual business plan of the Company or any Subsidiary,
(vi) any entering into, amending or modifying in any material respect of any agreements of the Company or any Subsidiary providing for payments by or to the Company or such Subsidiary in excess of $2,000,000 per annum or $5,000,000 in the aggregate,;
(vii) any determination of compensation, benefits, perquisites and other incentives for (a) senior management or (b) any other employee whose annual compensation is or will be as a result of such determination in excess of $100,000 per year, of the Company or its Subsidiaries and the approval or amendment of any plans or contracts in connection therewith, and any approval or amendment to any equity or other compensation or benefit plans for employees of the Company or its Subsidiaries,
(viii) any appointment or dismissal of any of the Chairman of the Board, Chief Executive Officer, President, Chief Financial Officer or Chief Operating Officer or any other executive officer in any similar capacity of the Company or any Subsidiary,
(ix) any change in accounting or tax principles, policies with respect to the financial statements, records or affairs of the Company or any Subsidiary, except as required by generally accepted accounting principles or by law or any other matters that could affect any regulatory status or tax liability of the Company or any Subsidiary, or any Securityholder Shareholder with respect to the investment by such Securityholder Shareholder in the Company,
(x) any appointment or removal of the auditors, regular legal counsel, financial advisors, underwriters (except underwriters selected as provided in the first sentence of Section 5.04(f5.04(f)(i) and (ii), unless such Demand Registration constitutes a First Public Offering), investment bankers or company-wide insurance providers of the Company or any Subsidiary,
(xi) any amendment to this Agreement, any exercise or waiver of the Company’s 's rights under this Agreement, any amendment to an Organizational Document the Charter or similar organizational documents Bylaws or any adoption of or amendment to the certificate of incorporation or bylaws of any Subsidiary,
(xii) any approval of the annual business plan, budget and long-term strategic plan of the Company or any Subsidiary,
(xiii) any modification of the long-term business strategy or scope of the business of the Company or any Subsidiary or any material customer relationships thereof,.
(xiv) any increase or decrease to the number of directors Directors that comprise the entire Board of the Company or board of directors of any Subsidiary,
(xv) any entry into or modification of any contract with a labor union (including any collective bargaining agreement),
(xvi) any entry into or modification of any contract with, obligation to or transaction or series of transactions between (1) the Company or any Subsidiary and (2) Hynix or any controlled Affiliate of Hynix, or
(xviixv) any contract with, obligation to or transaction or series of transactions between, the Company or any Subsidiary and one or more of its securityholders stockholders or their Affiliates.
Appears in 1 contract
Action by the Board. The Core Shareholders and the Company agree that:
(a) A quorum of the Board shall consist of a majority of the total number of directors, which provided that such majority shall include a majority of at least one director designated by the designees of Quadrangle Entities who is not an Independent Director and at least one director designated by the CVC US Designator Entities who is not an Independent Director, respectively, for so long as the Quadrangle Entities and a majority of the designees of the FP Designator; provided that in the event that either of the CVC US Designator or the FP DesignatorEntities, has the right respectively, are entitled to designate fewer than three one or more directors pursuant to Section 2.01 hereof, a quorum shall exist if at least one Core Director designated by such Person is present.
(b) All actions of the Board shall require (i) the affirmative vote of at least a majority of the directors present at a duly convened meeting of the Board at which a quorum is present (in person or telephonically) or (ii) the unanimous written consent of the Board, provided that, in the event that there is a vacancy on the Board and an individual has been nominated to fill such vacancy, the first order of business shall be to fill such vacancy.
(c) The Board may create executive, compensation, audit and such other committees as it may determine. Except with respect The Quadrangle Entities and the CVC Entities shall have the right to designate a number of directors comprising each such committee that is proportionate to the audit committee, the (i) Institutional Securityholders together shall be number of directors that such Shareholders are entitled to majority representation on designate pursuant to Section 2.01; provided that no such Shareholder shall have the right to designate any committee created by the Board, half of which such majority representation shall consist of a Core Director or Directors designated by the CVC US Designator and half of which such majority representation shall consist of a Core Director or Directors designated by the FP Designator, (ii) CVC Asia Pacific Investors or their Permitted Transferees shall be entitled to minority representation on each committee created by the Board, and (iii) Company and each Core Shareholder entitled to vote for the election of the chairman of any committee (in its capacity as a Securityholder, director of the Board, member of a committee, or otherwise) created by the Board will take all necessary action to ensure that the chairman of such special committee is a director designated by the CVC US Designator or the FP Designator in accordance with Section 2.01, in each case until such time as the committee members designated by such Core Shareholders are required to be removed as a result of the Company no longer qualifying as a “controlled company” (within the meaning of the principal securities exchange or quotation system on which the Common Shares are traded or quoted and solely formed in connection with any transaction, or proposed transaction, between the ownership Company or any Subsidiary, on the one hand, and such Shareholder or an Affiliate of Common Shares by such Shareholder, on the Core Shareholders)other hand.
(d) Until such time as the Company no longer qualifies as a “controlled company” (within the meaning of the principal securities exchange or quotation system on which the Common Shares are traded or quoted and solely in connection with the ownership of Common Shares by the Core Shareholders), no No action by the Company (including but not limited to any action by the Board or any committee thereof) shall be taken after the date hereof of the Original Agreement, and the Company shall not permit any action to be taken by any Subsidiary or any Joint Venture (but only, with respect to any Joint Venture, to the extent that the Company or a Subsidiary has the right pursuant to the terms of such Joint Venture to not permit such action to be taken), with respect to any of the following matters without the affirmative approval of the Board and either the CVC US Securityholder Representative or the FP Securityholder Representative, in each case, in its capacity as agent for Persons comprising CVC US and FP, in each case, in its capacity as a Securityholder; provided that the vote of a Core Director designated by the CVC US Designator or the FP Designator in favor of any action for which approval is required pursuant to this Section 2.05(d) shall constitute the consent of the CVC US Securityholder Representative (in the case of a vote of a director designated by the CVC US Designator) and the FP Securityholder Representative (in the case of a vote of a director designated by the FP Designator) in its capacity as agent for Persons comprising CVC US and FP, in each case, in its capacity as a SecurityholderBoard:
(i) (1) any merger or consolidation of the Company Company, any Subsidiary or any Joint Venture with or into any Person, other than a wholly owned Subsidiary, or of any Subsidiary or Joint Venture with or into any Person other than the Company or any other wholly owned Subsidiary, or (2) any sale of the Company or Company, any Subsidiary Subsidiary, any Joint Venture or any significant operations of the Company or Company, any Subsidiary or any joint venture transaction, Joint Venture or (3) any acquisition or disposition of assets, business, operations or securities by the Company Company, any Subsidiary or any Subsidiary Joint Venture (in a single transaction or a series of related transactions) having a value in each case in this clause (23) in excess of $3,000,000,;
(ii) the declaration of any dividend on or the making of any distribution with respect to, or the recapitalization, reclassification, redemption, repurchase or other acquisition of, any securities of the Company Company, any Subsidiary or any SubsidiaryJoint Venture, except (i) as expressly permitted by this Agreement,Agreement or the Charter and (ii) any dividend made from a Subsidiary of the Company to another Subsidiary of the Company or from a Subsidiary of the Company to the Company;
(iii) any liquidation, dissolution, commencement of bankruptcy, liquidation or similar proceedings with respect to the Company Company, any Subsidiary or any Subsidiary,Joint Venture;
(iv) any incurrence, refinancing, alteration of material terms or prepayment by the Company Company, any Subsidiary or any Subsidiary Joint Venture of indebtedness for borrowed money in excess of $2,000,000 in the aggregate (or the guaranty by the Company Company, any Subsidiary or any Subsidiary Joint Venture of any such indebtedness), or the issuance or registration with the SEC of any security by the Company Company, any Subsidiary or any Subsidiary Joint Venture, in each case other than (not including issuances i) pursuant to the First Lien Credit Agreement dated as of such securities February 24, 2005, among NTELOS Inc., the subsidiary guarantors named therein, the initial lenders, initial issuing bank and swing line bank each as named therein, M▇▇▇▇▇ S▇▇▇▇▇▇ Senior Funding, Inc., as administrative agent, M▇▇▇▇▇ S▇▇▇▇▇▇ & Co. Incorporated, as collateral agent and Bear S▇▇▇▇▇▇ Corporate Lending Inc., as syndication agent, (ii) the Second Lien Credit Agreement dated as of February 24, 2005, among NTELOS Inc., the subsidiary guarantors named therein, the lenders named therein, M▇▇▇▇▇ S▇▇▇▇▇▇ Senior Funding, Inc., as administrative agent, M▇▇▇▇▇ S▇▇▇▇▇▇ & Co. Incorporated, as collateral agent and Bear S▇▇▇▇▇▇ Corporate Lending Inc., as syndication agent, (iii) pursuant to any other revolving credit agreement previously approved by the Board in connection compliance with this Section 2.05(d), (iv) pursuant to any employee or stock option plans previously approved by the Board pursuant to clause in compliance with this Section 2.05(d) or (viiv) below), in each case other than as specifically contemplated by this Agreement,;
(v) any individual or related series of capital expenditures or capital leases which are inconsistent in any material respect with the annual capital expenditure or capital lease in excess of $1,000,000 which is not specifically contemplated budget approved by the annual business plan of the Company or any Subsidiary,Board in compliance with this Section 2.05(d);
(vi) any entering into, amending or modifying in any material respect of any agreements agreement of the Company Company, any Subsidiary or any Subsidiary providing for payments by or Joint Venture, which is made outside the ordinary course of business and is material to the Company or such Subsidiary in excess of $2,000,000 per annum or $5,000,000 in the aggregate,and its Subsidiaries as a whole;
(vii) any entering into of any agreement, indenture or other instrument that contains any provision that would restrict either the payment of dividends on the Company Common Stock or the repurchase of Company Common Stock in accordance with Section 4.04;
(viii) any determination of compensation, benefits, perquisites and or other incentives for (a) senior management or (b) any other employee whose annual compensation is or will be as a result of such determination in excess of $100,000 per year, executive officers of the Company Company, any Subsidiary or its Subsidiaries and any Joint Venture or the approval or amendment of any plans or contracts in connection therewith, and any approval of or amendment to any equity or other compensation or benefit plans for employees of the Company Company, Subsidiary or its Subsidiaries,any Joint Venture or the grant of any stock option or other equity compensation to any employee of the Company, any Subsidiary or any Joint Venture, other than any such determinations, amendments or grants (i) required by law, (ii) to satisfy agreements currently in place or deliver the benefits intended thereunder or (iii) to renew insurance or administrative service contracts relating to benefits plans if such renewals come due in the ordinary course;
(viiiix) any appointment or dismissal of any of the Chairman of the Board, Chief Executive Officer, President, Chief Financial Officer or Officer, Chief Operating Officer Officer, any division head or any other executive officer in any similar capacity of the Company Company, any Subsidiary or any Subsidiary,
(ix) any change in accounting or tax principles, policies with respect to the financial statements, records or affairs of the Company or any Subsidiary, except as required by generally accepted accounting principles or by law or any other matters that could affect any regulatory status or tax liability of the Company or any Subsidiary, or any Securityholder with respect to the investment by such Securityholder in the Company,Joint Venture;
(x) any appointment or removal of the auditors, regular legal counsel, financial advisors, underwriters (except underwriters selected as provided in the first sentence of Section 5.04(f), unless such Demand Registration constitutes a First Public Offering)underwriters, investment bankers or or, other than in connection with renewals of coverage at comparable levels in the ordinary course, company-wide insurance providers of the Company Company, any Subsidiary or any Subsidiary,Joint Venture;
(xi) any amendment to this Agreement, any exercise or waiver of the Company’s rights under this Agreement, any amendment to an Organizational Document the Charter or similar Bylaws or any adoption of or amendment to the certificate of incorporation, bylaws or other organizational documents of any Subsidiary,Subsidiary or Joint Venture;
(xii) any approval of the annual business plan, budget, capital expenditure budget and or long-term strategic plan of the Company Company, any Subsidiary or any Subsidiary,Joint Venture;
(xiii) any modification of the long-term business strategy or scope of the business of the Company or Company, any Subsidiary or any material customer relationships thereof,Joint Venture;
(xiv) any increase or decrease to the number of directors that comprise the entire Board of the Company or board of directors or similar governing body of the Company, any Subsidiary,Subsidiary or any Joint Venture;
(xv) any entry into or modification of any contract with a labor union (including any collective bargaining agreement),
(xvi) any entry into or modification of any contract with, obligation to or transaction or series of transactions between (1) the Company or any Subsidiary and (2) Hynix or any controlled Affiliate of Hynix, or
(xvii) any contract with, obligation to or transaction or series of transactions between, the Company Company, any Subsidiary or any Subsidiary Joint Venture, on the one hand, and one or more of its securityholders stockholders, other equityholders or their respective Affiliates, on the other hand;
(xvi) any initiation or settlement of any material litigation, arbitration, mediation or other dispute resolution proceeding outside of the ordinary course of business; or
(xvii) the entry into, or the termination, disposition or material amendment of the terms of, any Joint Venture.
Appears in 1 contract
Action by the Board. The Core Shareholders and the Company agree that:
(a) A quorum of the Board shall consist of a majority of the total number of directors, which provided that such majority shall include a majority of at least one director designated by the designees of Quadrangle Entities who is not an Independent Director and at least one director designated by the CVC US Designator Entities who is not an Independent Director, respectively, for so long as the Quadrangle Entities and a majority of the designees of the FP Designator; provided that in the event that either of the CVC US Designator or the FP DesignatorEntities, has the right respectively, are entitled to designate fewer than three one or more directors pursuant to Section 2.01 hereof, a quorum shall exist if at least one Core Director designated by such Person is present.
(b) All actions of the Board shall require (i) the affirmative vote of at least a majority of the directors present at a duly convened meeting of the Board at which a quorum is present (in person or telephonically) or (ii) the unanimous written consent of the Board, provided that, in the event that there is a vacancy on the Board and an individual has been nominated to fill such vacancy, the first order of business shall be to fill such vacancy.
(c) The Board may create executive, compensation, audit and such other committees as it may determine. Except with respect The Quadrangle Entities and the CVC Entities shall have the right to designate a number of directors comprising each such committee that is proportionate to the audit committee, the (i) Institutional Securityholders together shall be number of directors that such Shareholders are entitled to majority representation on designate pursuant to Section 2.01; provided that no such Shareholder shall have the right to designate any committee created by the Board, half of which such majority representation shall consist of a Core Director or Directors designated by the CVC US Designator and half of which such majority representation shall consist of a Core Director or Directors designated by the FP Designator, (ii) CVC Asia Pacific Investors or their Permitted Transferees shall be entitled to minority representation on each committee created by the Board, and (iii) Company and each Core Shareholder entitled to vote for the election of the chairman of any committee (in its capacity as a Securityholder, director of the Board, member of a committee, or otherwise) created by the Board will take all necessary action to ensure that the chairman of such special committee is a director designated by the CVC US Designator or the FP Designator in accordance with Section 2.01, in each case until such time as the committee members designated by such Core Shareholders are required to be removed as a result of the Company no longer qualifying as a “controlled company” (within the meaning of the principal securities exchange or quotation system on which the Common Shares are traded or quoted and solely formed in connection with any transaction, or proposed transaction, between the ownership Company or any Subsidiary, on the one hand, and such Shareholder or an Affiliate of Common Shares by such Shareholder, on the Core Shareholders)other hand.
(d) Until such time as the Company no longer qualifies as a “controlled company” (within the meaning of the principal securities exchange or quotation system on which the Common Shares are traded or quoted and solely in connection with the ownership of Common Shares by the Core Shareholders), no No action by the Company (including but not limited to any action by the Board or any committee thereof) shall be taken after the date hereof of the Original Agreement, and the Company shall not permit any action to be taken by any Subsidiary or any Joint Venture (but only, with respect to any Joint Venture, to the extent that the Company or a Subsidiary has the right pursuant to the terms of such Joint Venture to not permit such action to be taken), with respect to any of the following matters without the affirmative approval of the Board and either the CVC US Securityholder Representative or the FP Securityholder Representative, in each case, in its capacity as agent for Persons comprising CVC US and FP, in each case, in its capacity as a Securityholder; provided that the vote of a Core Director designated by the CVC US Designator or the FP Designator in favor of any action for which approval is required pursuant to this Section 2.05(d) shall constitute the consent of the CVC US Securityholder Representative (in the case of a vote of a director designated by the CVC US Designator) and the FP Securityholder Representative (in the case of a vote of a director designated by the FP Designator) in its capacity as agent for Persons comprising CVC US and FP, in each case, in its capacity as a SecurityholderBoard:
(1) any merger or consolidation of the Company Company, any Subsidiary or any Joint Venture with or into any Person, other than a wholly owned Subsidiary, or of any Subsidiary or Joint Venture with or into any Person other than the Company or any other wholly owned Subsidiary, or (2) any sale of the Company or Company, any Subsidiary Subsidiary, any Joint Venture or any significant operations of the Company or Company, any Subsidiary or any joint venture transaction, Joint Venture or (3) any acquisition or disposition of assets, business, operations or securities by the Company Company, any Subsidiary or any Subsidiary Joint Venture (in a single transaction or a series of related transactions) having a value in each case in this clause (23) in excess of $3,000,000,;
(ii) the declaration of any dividend on or the making of any distribution with respect to, or the recapitalization, reclassification, redemption, repurchase or other acquisition of, any securities of the Company Company, any Subsidiary or any SubsidiaryJoint Venture, except (i) as expressly permitted by this Agreement,Agreement or the Charter and (ii) any dividend made from a Subsidiary of the Company to another Subsidiary of the Company or from a Subsidiary of the Company to the Company;
(iii) any liquidation, dissolution, commencement of bankruptcy, liquidation or similar proceedings with respect to the Company Company, any Subsidiary or any Subsidiary,Joint Venture;
(iv) any incurrence, refinancing, alteration of material terms or prepayment by the Company Company, any Subsidiary or any Subsidiary Joint Venture of indebtedness for borrowed money in excess of $2,000,000 in the aggregate (or the guaranty by the Company Company, any Subsidiary or any Subsidiary Joint Venture of any such indebtedness), or the issuance or registration with the SEC of any security by the Company Company, any Subsidiary or any Subsidiary Joint Venture, in each case other than (not including issuances i) pursuant to the First Lien Credit Agreement dated as of such securities February 24, 2005, among NTELOS Inc., the subsidiary guarantors named therein, the initial lenders, initial issuing bank and swing line bank each as named therein, ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ Senior Funding, Inc., as administrative agent, ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & Co. Incorporated, as collateral agent and Bear ▇▇▇▇▇▇▇ Corporate Lending Inc., as syndication agent, (ii) the Second Lien Credit Agreement dated as of February 24, 2005, among NTELOS Inc., the subsidiary guarantors named therein, the lenders named therein, ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ Senior Funding, Inc., as administrative agent, ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & Co. Incorporated, as collateral agent and Bear ▇▇▇▇▇▇▇ Corporate Lending Inc., as syndication agent, (iii) pursuant to any other revolving credit agreement previously approved by the Board in connection compliance with this Section 2.05(d), (iv) pursuant to any employee or stock option plans previously approved by the Board pursuant to clause in compliance with this Section 2.05(d) or (viiv) below), in each case other than as specifically contemplated by this Agreement,;
(v) any individual or related series of capital expenditures or capital leases which are inconsistent in any material respect with the annual capital expenditure or capital lease in excess of $1,000,000 which is not specifically contemplated budget approved by the annual business plan of the Company or any Subsidiary,Board in compliance with this Section 2.05(d);
(vi) any entering into, amending or modifying in any material respect of any agreements agreement of the Company Company, any Subsidiary or any Subsidiary providing for payments by or Joint Venture, which is made outside the ordinary course of business and is material to the Company or such Subsidiary in excess of $2,000,000 per annum or $5,000,000 in the aggregate,and its Subsidiaries as a whole;
(vii) any entering into of any agreement, indenture or other instrument that contains any provision that would restrict either the payment of dividends on the Company Common Stock or the repurchase of Company Common Stock in accordance with Section 4.04;
(viii) any determination of compensation, benefits, perquisites and or other incentives for (a) senior management or (b) any other employee whose annual compensation is or will be as a result of such determination in excess of $100,000 per year, executive officers of the Company Company, any Subsidiary or its Subsidiaries and any Joint Venture or the approval or amendment of any plans or contracts in connection therewith, and any approval of or amendment to any equity or other compensation or benefit plans for employees of the Company Company, Subsidiary or its Subsidiaries,any Joint Venture or the grant of any stock option or other equity compensation to any employee of the Company, any Subsidiary or any Joint Venture, other than any such determinations, amendments or grants (i) required by law, (ii) to satisfy agreements currently in place or deliver the benefits intended thereunder or (iii) to renew insurance or administrative service contracts relating to benefits plans if such renewals come due in the ordinary course;
(viiiix) any appointment or dismissal of any of the Chairman of the Board, Chief Executive Officer, President, Chief Financial Officer or Officer, Chief Operating Officer Officer, any division head or any other executive officer in any similar capacity of the Company Company, any Subsidiary or any Subsidiary,
(ix) any change in accounting or tax principles, policies with respect to the financial statements, records or affairs of the Company or any Subsidiary, except as required by generally accepted accounting principles or by law or any other matters that could affect any regulatory status or tax liability of the Company or any Subsidiary, or any Securityholder with respect to the investment by such Securityholder in the Company,Joint Venture;
(x) any appointment or removal of the auditors, regular legal counsel, financial advisors, underwriters (except underwriters selected as provided in the first sentence of Section 5.04(f), unless such Demand Registration constitutes a First Public Offering)underwriters, investment bankers or or, other than in connection with renewals of coverage at comparable levels in the ordinary course, company-wide insurance providers of the Company Company, any Subsidiary or any Subsidiary,Joint Venture;
(xi) any amendment to this Agreement, any exercise or waiver of the Company’s rights under this Agreement, any amendment to an Organizational Document the Charter or similar Bylaws or any adoption of or amendment to the certificate of incorporation, bylaws or other organizational documents of any Subsidiary,Subsidiary or Joint Venture;
(xii) any approval of the annual business plan, budget, capital expenditure budget and or long-term strategic plan of the Company Company, any Subsidiary or any Subsidiary,Joint Venture;
(xiii) any modification of the long-term business strategy or scope of the business of the Company or Company, any Subsidiary or any material customer relationships thereof,Joint Venture;
(xiv) any increase or decrease to the number of directors that comprise the entire Board of the Company or board of directors or similar governing body of the Company, any Subsidiary,Subsidiary or any Joint Venture;
(xv) any entry into or modification of any contract with a labor union (including any collective bargaining agreement),
(xvi) any entry into or modification of any contract with, obligation to or transaction or series of transactions between (1) the Company or any Subsidiary and (2) Hynix or any controlled Affiliate of Hynix, or
(xvii) any contract with, obligation to or transaction or series of transactions between, the Company Company, any Subsidiary or any Subsidiary Joint Venture, on the one hand, and one or more of its securityholders stockholders, other equityholders or their respective Affiliates, on the other hand;
(xvi) any initiation or settlement of any material litigation, arbitration, mediation or other dispute resolution proceeding outside of the ordinary course of business; or
(xvii) the entry into, or the termination, disposition or material amendment of the terms of, any Joint Venture.
Appears in 1 contract
Sources: Shareholder Agreement
Action by the Board. The Core Shareholders and the Company agree that:
(a) A quorum of the Board shall consist of a majority of the total number of directors, which such majority shall include a majority of the designees nominees of the CVC US Designator and a majority of the designees of the FP DesignatorFP; provided that in the event that either of the CVC US Designator or the if FP Designator, has the right to designate fewer than three not nominated its independent directors pursuant to Section 2.01 hereof2.01(a), a quorum shall exist if at least one Core Director designated such majority will include all directors nominated by such Person is presentFP.
(b) All actions of the Board shall require (i) the affirmative vote of at least a majority of the directors present at a duly convened meeting of the Board at which a quorum is present or (ii) the unanimous written consent of the Board, ; provided that, in the event that if there is a vacancy on the Board and an individual has been nominated to fill such vacancy, the first order of business shall be to fill such vacancy.
(c) The Board may create executive, compensation, audit audit, nominating and corporate governance and such other committees as it may determine. Except with respect During such time as FP's Aggregate Ownership Percentage is greater than or equal to the audit committee25%, the (i) Institutional Securityholders together FP shall be entitled to majority representation on any committee created by the Board, half of which such majority representation shall consist of a Core Director any director or Directors directors designated by FP to serve on such committee; provided that if the CVC US Designator and half of which such majority representation shall consist of a Core Director rules or Directors designated by the FP Designator, (ii) CVC Asia Pacific Investors or their Permitted Transferees shall be entitled to minority representation on each committee created by the Board, and (iii) Company and each Core Shareholder entitled to vote for the election regulations of the chairman of any committee (in its capacity as a Securityholder, director of the Board, member of a committee, or otherwise) created by the Board will take all necessary action to ensure that the chairman of such committee is a director designated by the CVC US Designator SEC or the FP Designator in accordance with Section 2.01, in each case until such time as the committee members designated by such Core Shareholders are required to be removed as a result of the Company no longer qualifying as a “controlled company” (within the meaning of the principal securities exchange or quotation system on which the Common Shares are Stock is traded require any committee to consist of one or quoted and solely in connection with the ownership of Common Shares more "independent directors," as such term is defined by the Core Shareholders).
(d) Until such time as the Company no longer qualifies as a “controlled company” (within the meaning rules of the principal securities exchange or quotation system on which the Common Shares are traded or quoted and solely in connection with Stock is traded, the ownership of Common Shares directors designated to serve on such committee by FP shall be "independent directors." FP's entitlement to majority representation on any committee created by the Core Shareholders)Board shall:
(i) at such time as FP's Aggregate Ownership Percentage is less than 25%, be reduced to an entitlement to designate one-fourth of the members of each such committee, rounded up to the nearest whole number of members if such fraction is not a whole number;
(ii) at such time as FP's Aggregate Ownership Percentage is less than 20%, be reduced to an entitlement to designate one-fifth of the members of each such committee, rounded up to the nearest whole number of members if such fraction is not a whole number;
(iii) at such time as FP's Aggregate Ownership Percentage is less than 10%, be reduced to an entitlement to designate one-tenth of the members of each such committee, rounded up to the nearest whole number of members if such fraction is not a whole number; and
(iv) terminate at such time as FP's Aggregate Ownership Percentage is less than 5%.
(d) At such time as FP's Aggregate Ownership Percentage is greater than or equal to 25%, no action by the Company (including but not limited to any action by the Board or any committee thereof) shall be taken after the date hereof with respect to any of the following matters without the prior written consent of FP and the affirmative approval of the Board and either the CVC US Securityholder Representative or the FP Securityholder Representative, in each case, in its capacity as agent for Persons comprising CVC US and FP, in each case, in its capacity as a Securityholder; provided that the vote of a Core Director designated by the CVC US Designator or the FP Designator in favor of any action for which approval is required pursuant to this Section 2.05(d) shall constitute the consent of the CVC US Securityholder Representative (in the case of a vote of a director designated by the CVC US Designator) and the FP Securityholder Representative (in the case of a vote of a director designated by the FP Designator) in its capacity as agent for Persons comprising CVC US and FP, in each case, in its capacity as a SecurityholderBoard:
(1i) the declaration of any dividend on or the making of any distribution with respect to, or the recapitalization, reclassification, redemption, repurchase or other acquisition of, any securities of the Company or any Subsidiary, except as expressly permitted by this Agreement;
(ii) any incurrence, refinancing, alteration of material terms or prepayment by the Company or any Subsidiary of indebtedness for borrowed money in excess of $10,000,000 in the aggregate (or the guaranty by the Company or any Subsidiary of any such indebtedness);
(iii) any approval of the annual business plan, budget and long-term strategic plan of the Company or any Subsidiary;
(iv) any modification of the long-term business strategy or scope of the business of the Company or any Subsidiary or any material customer relationships thereof;
(A) any merger or consolidation of the Company with or into any Person, other than a wholly owned Subsidiary, or of any Subsidiary with or into any Person other than the Company or any other wholly owned Subsidiary, or (2B) any sale of the Company or any Subsidiary or any significant operations of the Company or any Subsidiary or any joint venture transaction, acquisition or disposition of assets, business, operations or securities by the Company or any Subsidiary (in a single transaction or a series of related transactions) having a value in each case in this clause (2B) in excess of $3,000,000,10,000,000;
(ii) the declaration of any dividend on or the making of any distribution with respect to, or the recapitalization, reclassification, redemption, repurchase or other acquisition of, any securities of the Company or any Subsidiary, except as expressly permitted by this Agreement,
(iiivi) any liquidation, dissolution, commencement of bankruptcy, liquidation or similar proceedings with respect to the Company or any Subsidiary,;
(ivvii) any incurrence, refinancing, alteration of material terms or prepayment by the Company or any Subsidiary of indebtedness for borrowed money in excess of $2,000,000 in the aggregate (or the guaranty by the Company or any Subsidiary of any such indebtedness), or the issuance of any security by the Company or any Subsidiary (not including issuances of such securities in connection with employee or stock option plans previously approved by the Board pursuant to clause (vii) belowBoard), in each case other than as specifically contemplated by this Agreement,;
(v) any capital expenditure or capital lease in excess of $1,000,000 which is not specifically contemplated by the annual business plan of the Company or any Subsidiary,
(vi) any entering into, amending or modifying in any material respect of any agreements of the Company or any Subsidiary providing for payments by or to the Company or such Subsidiary in excess of $2,000,000 per annum or $5,000,000 in the aggregate,
(viiviii) any determination of compensation, benefits, perquisites and other incentives for (a) senior management the Chief Executive Officer or (b) any other employee whose annual compensation is or will be as a result of such determination in excess of $100,000 per year, the Chief Financial Officer of the Company or its Subsidiaries and the approval or amendment of any plans or contracts in connection therewith, and any approval or amendment to any equity or other compensation or benefit plans for employees of the Company or its Subsidiaries,;
(viiiix) any appointment or dismissal of any of the Chairman of the Board, Chief Executive Officer, President, Chief Financial Officer or Chief Operating Officer or any other executive officer in any similar capacity of the Company or any Subsidiary,
(ix) any change in accounting or tax principles, policies with respect to the financial statements, records or affairs of the Company or any Subsidiary, except as required by generally accepted accounting principles or by law or any other matters that could affect any regulatory status or tax liability of the Company or any Subsidiary, or any Securityholder with respect to the investment by such Securityholder in the Company,;
(x) any appointment or removal of the auditors, regular legal counsel, financial advisors, underwriters (except underwriters selected as provided in the first sentence of Section 5.04(f), unless such Demand Registration constitutes a First Public Offering), investment bankers or company-wide insurance providers of the Company or any Subsidiary,
(xi) any amendment to this Agreement, any exercise or waiver of the Company’s 's rights under this Agreement, any amendment to an Organizational Document the Charter or similar organizational documents Bylaws or any adoption of or amendment to the certificate of incorporation or bylaws of any Subsidiary,; or
(xii) any approval of the annual business plan, budget and long-term strategic plan of the Company or any Subsidiary,
(xiii) any modification of the long-term business strategy or scope of the business of the Company or any Subsidiary or any material customer relationships thereof,
(xivxi) any increase or decrease to the number of directors Directors that comprise the entire Board of the Company or board of directors of any Subsidiary,
(xv) any entry into or modification of any contract with a labor union (including any collective bargaining agreement),
(xvi) any entry into or modification of any contract with, obligation to or transaction or series of transactions between (1) the Company or any Subsidiary and (2) Hynix or any controlled Affiliate of Hynix, or
(xvii) any contract with, obligation to or transaction or series of transactions between, the Company or any Subsidiary and one or more of its securityholders or their Affiliates.
Appears in 1 contract
Action by the Board. The Core Shareholders and the Company agree that:
(a) A quorum of the Board shall consist of a majority of the total number of directors, which provided that such majority shall include a majority of at least one director designated by the designees of Quadrangle Entities who is not an Independent Director and at least one director designated by the CVC US Designator Entities who is not an Independent Director, respectively, for so long as the Quadrangle Entities and a majority of the designees of the FP Designator; provided that in the event that either of the CVC US Designator or the FP DesignatorEntities, has the right respectively, are entitled to designate fewer than three one or more directors pursuant to Section 2.01 hereof, a quorum shall exist if at least one Core Director designated by such Person is present.
(b) All actions of the Board shall require (i) the affirmative vote of at least a majority of the directors present at a duly convened meeting of the Board at which a quorum is present (in person or telephonically) or (ii) the unanimous written consent of the Board, provided that, in the event that there is a vacancy on the Board and an individual has been nominated to fill such vacancy, the first order of business shall be to fill such vacancy.
(c) The Board may create executive, compensation, audit and such other committees as it may determine. Except with respect The Quadrangle Entities and the CVC Entities shall have the right to designate a number of directors comprising each such committee that is proportionate to the audit committee, the (i) Institutional Securityholders together shall be number of directors that such Shareholders are entitled to majority representation on designate pursuant to Section 2.01; provided that no such Shareholder shall have the right to designate any committee created by the Board, half of which such majority representation shall consist of a Core Director or Directors designated by the CVC US Designator and half of which such majority representation shall consist of a Core Director or Directors designated by the FP Designator, (ii) CVC Asia Pacific Investors or their Permitted Transferees shall be entitled to minority representation on each committee created by the Board, and (iii) Company and each Core Shareholder entitled to vote for the election of the chairman of any committee (in its capacity as a Securityholder, director of the Board, member of a committee, or otherwise) created by the Board will take all necessary action to ensure that the chairman of such special committee is a director designated by the CVC US Designator or the FP Designator in accordance with Section 2.01, in each case until such time as the committee members designated by such Core Shareholders are required to be removed as a result of the Company no longer qualifying as a “controlled company” (within the meaning of the principal securities exchange or quotation system on which the Common Shares are traded or quoted and solely formed in connection with any transaction, or proposed transaction, between the ownership Company or any Subsidiary, on the one hand, and such Shareholder or an Affiliate of Common Shares by such Shareholder, on the Core Shareholders)other hand.
(d) Until such time as the Company no longer qualifies as a “controlled company” (within the meaning of the principal securities exchange or quotation system on which the Common Shares are traded or quoted and solely in connection with the ownership of Common Shares by the Core Shareholders), no No action by the Company (including but not limited to any action by the Board or any committee thereof) shall be taken after the date hereof of the Original Agreement, and the Company shall not permit any action to be taken by any Subsidiary or any Joint Venture (but only, with respect to any Joint Venture, to the extent that the Company or a Subsidiary has the right pursuant to the terms of such Joint Venture to not permit such action to be taken), with respect to any of the following matters without the affirmative approval of the Board and either the CVC US Securityholder Representative or the FP Securityholder Representative, in each case, in its capacity as agent for Persons comprising CVC US and FP, in each case, in its capacity as a Securityholder; provided that the vote of a Core Director designated by the CVC US Designator or the FP Designator in favor of any action for which approval is required pursuant to this Section 2.05(d) shall constitute the consent of the CVC US Securityholder Representative (in the case of a vote of a director designated by the CVC US Designator) and the FP Securityholder Representative (in the case of a vote of a director designated by the FP Designator) in its capacity as agent for Persons comprising CVC US and FP, in each case, in its capacity as a SecurityholderBoard:
(1) any merger or consolidation of the Company Company, any Subsidiary or any Joint Venture with or into any Person, other than a wholly owned Subsidiary, or of any Subsidiary or Joint Venture with or into any Person other than the Company or any other wholly owned Subsidiary, or (2) any sale of the Company or Company, any Subsidiary Subsidiary, any Joint Venture or any significant operations of the Company or Company, any Subsidiary or any joint venture transaction, Joint Venture or (3) any acquisition or disposition of assets, business, operations or securities by the Company Company, any Subsidiary or any Subsidiary Joint Venture (in a single transaction or a series of related transactions) having a value in each case in this clause (23) in excess of $3,000,000,;
(ii) the declaration of any dividend on or the making of any distribution with respect to, or the recapitalization, reclassification, redemption, repurchase or other acquisition of, any securities of the Company Company, any Subsidiary or any SubsidiaryJoint Venture, except (i) as expressly permitted by this Agreement,Agreement or the Charter and (ii) any dividend made from a Subsidiary of the Company to another Subsidiary of the Company or from a Subsidiary of the Company to the Company;
(iii) any liquidation, dissolution, commencement of bankruptcy, liquidation or similar proceedings with respect to the Company Company, any Subsidiary or any Subsidiary,Joint Venture;
(iv) any incurrence, refinancing, alteration of material terms or prepayment by the Company Company, any Subsidiary or any Subsidiary Joint Venture of indebtedness for borrowed money in excess of $2,000,000 in the aggregate (or the guaranty by the Company Company, any Subsidiary or any Subsidiary Joint Venture of any such indebtedness), or the issuance or registration with the SEC of any security by the Company Company, any Subsidiary or any Subsidiary Joint Venture, in each case other than (not including issuances i) pursuant to the First Lien Credit Agreement dated as of such securities February 24, 2005, among NTELOS Inc., the subsidiary guarantors named therein, the initial lenders, initial issuing bank and swing line bank each as named therein, ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ Senior Funding, Inc., as administrative agent, ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & Co. Incorporated, as collateral agent and Bear ▇▇▇▇▇▇▇ Corporate Lending Inc., as syndication agent, (ii) the Second Lien Credit Agreement dated as of February 24, 2005, among NTELOS Inc., the subsidiar y guarantors named therein, the lenders named therein, ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ Senior Funding, Inc., as administrative agent, ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & Co. Incorporated, as collateral agent and Bear ▇▇▇▇▇▇▇ Corporate Lending Inc., as syndication agent, (iii) pursuant to any other revolving credit agreement previously approved by the Board in connection compliance with this Section 2.05(d), (iv) pursuant to any employee or stock option plans previously approved by the Board pursuant to clause in compliance with this Section 2.05(d) or (viiv) below), in each case other than as specifically contemplated by this Agreement,;
(v) any individual or related series of capital expenditures or capital leases which are inconsistent in any material respect with the annual capital expenditure or capital lease in excess of $1,000,000 which is not specifically contemplated budget approved by the annual business plan of the Company or any Subsidiary,Board in compliance with this Section 2.05(d);
(vi) any entering into, amending or modifying in any material respect of any agreements agreement of the Company Company, any Subsidiary or any Subsidiary providing for payments by or Joint Venture, which is made outside the ordinary course of business and is material to the Company or such Subsidiary in excess of $2,000,000 per annum or $5,000,000 in the aggregate,and its Subsidiaries as a whole;
(vii) any entering into of any agreement, indenture or other instrument that contains any provision that would restrict either the payment of dividends on the Company Common Stock or the repurchase of Company Common Stock in accordance with Section 4.04;
(viii) any determination of compensation, benefits, perquisites and or other incentives for (a) senior management or (b) any other employee whose annual compensation is or will be as a result of such determination in excess of $100,000 per year, executive officers of the Company Company, any Subsidiary or its Subsidiaries and any Joint Venture or the approval or amendment of any plans or contracts in connection therewith, and any approval of or amendment to any equity or other compensation or benefit plans for employees of the Company Company, Subsidiary or its Subsidiaries,any Joint Venture or the grant of any stock option or other equity compensation to any employee of the Company, any Subsidiary or any Joint Venture, other than any such determinations, amendments or grants (i) required by law, (ii) to satisfy agreements currently in place or deliver the benefits intended thereunder or (iii) to renew insurance or administrative service contracts relating to benefits plans if such renewals come due in the ordinary course;
(viiiix) any appointment or dismissal of any of the Chairman of the Board, Chief Executive Officer, President, Chief Financial Officer or Officer, Chief Operating Officer Officer, any division head or any other executive officer in any similar capacity of the Company Company, any Subsidiary or any Subsidiary,
(ix) any change in accounting or tax principles, policies with respect to the financial statements, records or affairs of the Company or any Subsidiary, except as required by generally accepted accounting principles or by law or any other matters that could affect any regulatory status or tax liability of the Company or any Subsidiary, or any Securityholder with respect to the investment by such Securityholder in the Company,Joint Venture;
(x) any appointment or removal of the auditors, regular legal counsel, financial advisors, underwriters (except underwriters selected as provided in the first sentence of Section 5.04(f), unless such Demand Registration constitutes a First Public Offering)underwriters, investment bankers or or, other than in connection with renewals of coverage at comparable levels in the ordinary course, company-wide insurance providers of the Company Company, any Subsidiary or any Subsidiary,Joint Venture;
(xi) any amendment to this Agreement, any exercise or waiver of the Company’s rights under this Agreement, any amendment to an Organizational Document the Charter or similar Bylaws or any adoption of or amendment to the certificate of incorporation, bylaws or other organizational documents of any Subsidiary,Subsidiary or Joint Venture;
(xii) any approval of the annual business plan, budget, capital expenditure budget and or long-term strategic plan of the Company Company, any Subsidiary or any Subsidiary,Joint Venture;
(xiii) any modification of the long-term business strategy or scope of the business of the Company or Company, any Subsidiary or any material customer relationships thereof,Joint Venture;
(xiv) any increase or decrease to the number of directors that comprise the entire Board of the Company or board of directors or similar governing body of the Company, any Subsidiary,Subsidiary or any Joint Venture;
(xv) any entry into or modification of any contract with a labor union (including any collective bargaining agreement),
(xvi) any entry into or modification of any contract with, obligation to or transaction or series of transactions between (1) the Company or any Subsidiary and (2) Hynix or any controlled Affiliate of Hynix, or
(xvii) any contract with, obligation to or transaction or series of transactions between, the Company Company, any Subsidiary or any Subsidiary Joint Venture, on the one hand, and one or more of its securityholders stockholders, other equityholders or their respective Affiliates, on the other hand;
(xvi) any initiation or settlement of any material litigation, arbitration, mediation or other dispute resolution proceeding outside of the ordinary course of business; or
(xvii) the entry into, or the termination, disposition or material amendment of the terms of, any Joint Venture.
Appears in 1 contract
Sources: Shareholders Agreement (Quadrangle Gp Investors LLC)
Action by the Board. The Core Shareholders and the Company agree that:
(a) A quorum of the Board shall consist of a majority of the total number of directors, which such majority shall include a majority of the designees of the CVC US Designator and a majority of the designees of the FP Designator, provided that the CVC US Designator and the FP Designator together shall have the right at any time to increase the number of directors necessary to constitute such quorum; and provided further, that in the event that either of the CVC US Designator or the FP Designator, has the right to designate fewer than three directors pursuant to Section 2.01 hereof, a quorum shall exist if at least one Core Director director designated by such Person is present.
(b) All actions of the Board shall require (i) the affirmative vote of at least a majority of the directors present at a duly convened meeting of the Board at which a quorum is present or (ii) the unanimous written consent of the Board, provided that, in the event that there is a vacancy on the Board and an individual has been nominated to fill such vacancy, the first order of business shall be to fill such vacancy.
(c) The Board may create executive, compensation, audit and such other committees as it may determine. Except with respect to the audit committee, the (i) The Institutional Securityholders together shall be entitled to majority representation on any committee created by the Board, half of which such majority representation shall consist of a Core Director director or Directors directors designated by the CVC US Designator and half of which such majority representation shall consist of a Core Director director or Directors directors designated by the FP Designator, (ii) . The CVC Asia Pacific Investors or their Permitted Transferees shall be entitled to minority representation on each committee created by the Board, and (iii) Company and each Core Shareholder . Each Securityholder entitled to vote for the election of the chairman of any committee (in its capacity as a Securityholder, director of the Board, member of a committee, or otherwise) created by the Board agrees that it will take all necessary action to ensure that the chairman of such committee is a director designated by the CVC US Designator or the FP Designator in accordance with Section 2.01, in each case until such time as the committee members designated by such Core Shareholders are required to be removed as a result of the Company no longer qualifying as a “controlled company” (within the meaning of the principal securities exchange or quotation system on which the Common Shares are traded or quoted and solely in connection with the ownership of Common Shares by the Core Shareholders).
(d) Until such time as the Company no longer qualifies as a “controlled company” (within the meaning of the principal securities exchange or quotation system on which the Common Shares are traded or quoted and solely in connection with the ownership of Common Shares by the Core Shareholders), no No action by the Company (including but not limited to any action by the Board or any committee thereof) shall be taken after the date hereof with respect to any of the following matters without the affirmative approval of the Board and either each of the CVC US Securityholder Representative or and the FP Securityholder Representative, in each case, in its capacity as agent for Persons comprising CVC US and FP, in each case, in its capacity as a Securityholder; provided that the vote of a Core Director director designated by the CVC US Designator or the FP Designator in favor of any action for which approval is required pursuant to this Section 2.05(d) shall constitute the consent of the CVC US Securityholder Representative (in the case of a vote of a director designated by the CVC US Designator) and the FP Securityholder Representative (in the case of a vote of a director designated by the FP Designator) in its capacity as agent for Persons comprising CVC US and FP, in each case, in its capacity as a Securityholder:
(1) any merger or consolidation of the Company with or into any Person, other than a wholly owned Subsidiary, or of any Subsidiary with or into any Person other than the Company or any other wholly owned Subsidiary, or (2) any sale of the Company or any Subsidiary or any significant operations of the Company or any Subsidiary or any joint venture transaction, acquisition or disposition of assets, business, operations or securities by the Company or any Subsidiary (in a single transaction or a series of related transactions) having a value in each case in this clause (2) in excess of $3,000,000,
(ii) the declaration of any dividend on or the making of any distribution with respect to, or the recapitalization, reclassification, redemption, repurchase or other acquisition of, any securities of the Company or any Subsidiary, except as expressly permitted by this Agreement,
(iii) any liquidation, dissolution, commencement of bankruptcy, liquidation or similar proceedings with respect to the Company or any Subsidiary,
(iv) any incurrence, refinancing, alteration of material terms or prepayment by the Company or any Subsidiary of indebtedness for borrowed money in excess of $2,000,000 in the aggregate (or the guaranty by the Company or any Subsidiary of any such indebtedness), or the issuance of any security by the Company or any Subsidiary (not including issuances of such securities in connection with employee or stock option plans previously approved by the Board pursuant to clause (vii) below), in each case other than (a) pursuant to the Loan Agreement, dated as of the Closing Date, among Hynix, Korea Exchange Bank, as Arranger, Agent and Security Agent, and the other banks and financial institutions named as lenders therein, as the same may be amended, modified, refinanced or replaced, and is in effect from time to time, (b) pursuant to the Master Revolving Credit Facility Agreement, dated as of the Closing Date, between Hana Bank and Magnachip Semiconductor, Ltd., as the same may be amended, modified, refinanced or replaced, and is in effect from time to time and (c) as specifically contemplated by this Agreement,
(v) any capital expenditure or capital lease in excess of $1,000,000 which is not specifically contemplated by the annual business plan of the Company or any Subsidiary,
(vi) any entering into, amending or modifying in any material respect of any agreements of the Company or any Subsidiary providing for payments by or to the Company or such Subsidiary in excess of $2,000,000 per annum or $5,000,000 in the aggregate,
(vii) any determination of compensation, benefits, perquisites and other incentives for (a) senior management or (b) any other employee whose annual compensation is or will be as a result of such determination in excess of $100,000 per year, of the Company or its Subsidiaries and the approval or amendment of any plans or contracts in connection therewith, and any approval or amendment to any equity or other compensation or benefit plans for employees of the Company or its Subsidiaries,
(viii) any appointment or dismissal of any of the Chairman of the Board, Chief Executive Officer, President, Chief Financial Officer or Chief Operating Officer or any other executive officer in any similar capacity of the Company or any Subsidiary,
(ix) any change in accounting or tax principles, policies with respect to the financial statements, records or affairs of the Company or any Subsidiary, except as required by generally accepted accounting principles or by law or any other matters that could affect any regulatory status or tax liability of the Company or any Subsidiary, or any Securityholder with respect to the investment by such Securityholder in the Company,
(x) any appointment or removal of the auditors, regular legal counsel, financial advisors, underwriters (except underwriters selected as provided in the first sentence of Section 5.04(f), unless such Demand Registration constitutes a First Public Offering), investment bankers or company-wide insurance providers of the Company or any Subsidiary,
(xi) any amendment to this Agreement, any exercise or waiver of the Company’s rights under this Agreement, any amendment to an Organizational Document the Operating Agreement or any adoption of or amendment to the certificate of incorporation or bylaws or similar organizational documents of any Subsidiary,
(xii) any approval of the annual business plan, budget and long-term strategic plan of the Company or any Subsidiary,
(xiii) any modification of the long-term business strategy or scope of the business of the Company or any Subsidiary or any material customer relationships thereof,
(xiv) any increase or decrease to the number of directors that comprise the entire Board of the Company or board of directors of any Subsidiary,
(xv) any entry into or modification of any contract with a labor union (including any collective bargaining agreement),
(xvi) any entry into or modification of any contract with, obligation to or transaction or series of transactions between (1) the Company or any Subsidiary and (2) Hynix or any controlled Affiliate of Hynix, or
(xvii) any contract with, obligation to or transaction or series of transactions between, the Company or any Subsidiary and one or more of its securityholders or their Affiliates.
Appears in 1 contract
Sources: Securityholders’ Agreement (MagnaChip Semiconductor LTD (United Kingdom))
Action by the Board. The Core Shareholders and the Company agree that:
(a) A quorum of the Board shall consist of a majority of the total number of directors, which such majority shall include a majority of the designees nominees of the CVC US Designator and a majority of the designees of the FP DesignatorModular ; provided that in the event that either of the CVC US Designator or the FP Designator, if Modular has the right to designate fewer than three not nominated its independent directors pursuant to Section 2.01 hereof2.01(a), a quorum shall exist if at least one Core Director designated such majority will include all directors nominated by such Person is presentModular.
(b) All actions of the Board shall require (i) the affirmative vote of at least a majority of the directors present at a duly convened meeting of the Board at which a quorum is present or (ii) the unanimous written consent of the Board, ; provided that, in the event that if there is a vacancy on the Board and an individual has been nominated to fill such vacancy, the first order of business shall be to fill such vacancy.
(c) The Board may create executive, compensation, audit audit, nominating and corporate governance and such other committees as it may determine. Except with respect During such time as Modular’s Aggregate Ownership Percentage is greater than or equal to the audit committee25%, the (i) Institutional Securityholders together Modular shall be entitled to majority representation on any committee created by the Board, half of which such majority representation shall consist of a Core Director any director or Directors directors designated by Modular to serve on such committee; provided that if the CVC US Designator and half of which such majority representation shall consist of a Core Director rules or Directors designated by the FP Designator, (ii) CVC Asia Pacific Investors or their Permitted Transferees shall be entitled to minority representation on each committee created by the Board, and (iii) Company and each Core Shareholder entitled to vote for the election regulations of the chairman of any committee (in its capacity as a Securityholder, director of the Board, member of a committee, or otherwise) created by the Board will take all necessary action to ensure that the chairman of such committee is a director designated by the CVC US Designator SEC or the FP Designator in accordance with Section 2.01, in each case until such time as the committee members designated by such Core Shareholders are required to be removed as a result of the Company no longer qualifying as a “controlled company” (within the meaning of the principal securities exchange or quotation system on which the Common Ordinary Shares are traded require any committee to consist of one or quoted and solely in connection with the ownership of Common Shares more “independent directors,” as such term is defined by the Core Shareholders).
(d) Until such time as the Company no longer qualifies as a “controlled company” (within the meaning rules of the principal securities exchange or quotation system on which the Common Ordinary Shares are traded or quoted and solely in connection with traded, the ownership of Common Shares directors designated to serve on such committee by Modular shall be “independent directors.” Modular’s entitlement to majority representation on any committee created by the Core Shareholders)Board shall:
(i) at such time as Modular’s Aggregate Ownership Percentage is less than 25%, be reduced to an entitlement to designate one-fourth of the members of each such committee, rounded up to the nearest whole number of members if such fraction is not a whole number;
(ii) at such time as Modular’s Aggregate Ownership Percentage is less than 20%, be reduced to an entitlement to designate one-fifth of the members of each such committee, rounded up to the nearest whole number of members if such fraction is not a whole number;
(iii) at such time as Modular’s Aggregate Ownership Percentage is less than 10%, be reduced to an entitlement to designate one-tenth of the members of each such committee, rounded up to the nearest whole number of members if such fraction is not a whole number; and
(iv) terminate at such time as Modular’s Aggregate Ownership Percentage is less than 5%.
(d) At such time as Modular’s Aggregate Ownership Percentage is greater than or equal to 25%, no action by the Company (including but not limited to any action by the Board or any committee thereof) shall be taken after the date hereof with respect to any of the following matters without the prior written consent of Modular and the affirmative approval of the Board and either the CVC US Securityholder Representative or the FP Securityholder Representative, in each case, in its capacity as agent for Persons comprising CVC US and FP, in each case, in its capacity as a Securityholder; provided that the vote of a Core Director designated by the CVC US Designator or the FP Designator in favor of any action for which approval is required pursuant to this Section 2.05(d) shall constitute the consent of the CVC US Securityholder Representative (in the case of a vote of a director designated by the CVC US Designator) and the FP Securityholder Representative (in the case of a vote of a director designated by the FP Designator) in its capacity as agent for Persons comprising CVC US and FP, in each case, in its capacity as a SecurityholderBoard:
(1i) the declaration of any dividend on or the making of any distribution with respect to, or the recapitalization, reclassification, redemption, repurchase or other acquisition of any securities of the Company or any Subsidiary, except as expressly permitted by this Agreement;
(ii) any incurrence, refinancing, alteration of material terms or prepayment by the Company or any Subsidiary of indebtedness for borrowed money in excess of $10,000,000 in the aggregate (or the guaranty by the Company or any Subsidiary of any such indebtedness);
(iii) any approval of the annual business plan, budget and long-term strategic plan of the Company or any Subsidiary;
(iv) any modification of the long-term business strategy or scope of the business of the Company or any Subsidiary or any material customer relationships thereof;
(v) (A) any merger or consolidation of the Company with or into any Person, other than a wholly owned Subsidiary, or of any Subsidiary with or into any Person other than the Company or any other wholly owned Subsidiary, or (2B) any sale of the Company or any Subsidiary or any significant operations of the Company or any Subsidiary or any joint venture transaction, acquisition or disposition of assets, business, operations or securities by the Company or any Subsidiary (in a single transaction or a series of related transactions) having a value in each case in this clause (2B) in excess of $3,000,000,10,000,000;
(ii) the declaration of any dividend on or the making of any distribution with respect to, or the recapitalization, reclassification, redemption, repurchase or other acquisition of, any securities of the Company or any Subsidiary, except as expressly permitted by this Agreement,
(iiivi) any liquidation, dissolution, commencement of bankruptcy, liquidation or similar proceedings with respect to the Company or any Subsidiary,;
(ivvii) any incurrence, refinancing, alteration of material terms or prepayment by the Company or any Subsidiary of indebtedness for borrowed money in excess of $2,000,000 in the aggregate (or the guaranty by the Company or any Subsidiary of any such indebtedness), or the issuance of any security by the Company or any Subsidiary (not including issuances of such securities in connection with employee or stock option plans previously approved by the Board pursuant to clause (vii) belowBoard), in each case other than as specifically contemplated by this Agreement,;
(v) any capital expenditure or capital lease in excess of $1,000,000 which is not specifically contemplated by the annual business plan of the Company or any Subsidiary,
(vi) any entering into, amending or modifying in any material respect of any agreements of the Company or any Subsidiary providing for payments by or to the Company or such Subsidiary in excess of $2,000,000 per annum or $5,000,000 in the aggregate,
(viiviii) any determination of compensation, benefits, perquisites and other incentives for (a) senior management the Chief Executive Officer, President or (b) any other employee whose annual compensation is or will be as a result of such determination in excess of $100,000 per year, the Chief Financial Officer of the Company or its Subsidiaries and the approval or amendment of any plans or contracts in connection therewith, and any approval or amendment to any equity or other compensation or benefit plans for employees of the Company or its Subsidiaries,;
(viiiix) any appointment or dismissal of any of the Chairman of the Board, Chief Executive Officer, President, Chief Financial Officer or Chief Operating Officer or any other executive officer in any similar capacity of the Company or any Subsidiary,
(ix) any change in accounting or tax principles, policies with respect to the financial statements, records or affairs of the Company or any Subsidiary, except as required by generally accepted accounting principles or by law or any other matters that could affect any regulatory status or tax liability of the Company or any Subsidiary, or any Securityholder with respect to the investment by such Securityholder in the Company,;
(x) any appointment or removal of the auditors, regular legal counsel, financial advisors, underwriters (except underwriters selected as provided in the first sentence of Section 5.04(f), unless such Demand Registration constitutes a First Public Offering), investment bankers or company-wide insurance providers of the Company or any Subsidiary,
(xi) any amendment to this Agreement, any exercise or waiver of the Company’s rights under this Agreement, any amendment to an Organizational Document the Charter or similar organizational documents Bylaws or any adoption of or amendment to the certificate of incorporation or bylaws of any Subsidiary,; or
(xii) any approval of the annual business plan, budget and long-term strategic plan of the Company or any Subsidiary,
(xiii) any modification of the long-term business strategy or scope of the business of the Company or any Subsidiary or any material customer relationships thereof,
(xivxi) any increase or decrease to the number of directors Directors that comprise the entire Board of the Company or board of directors of any Subsidiary,
(xv) any entry into or modification of any contract with a labor union (including any collective bargaining agreement),
(xvi) any entry into or modification of any contract with, obligation to or transaction or series of transactions between (1) the Company or any Subsidiary and (2) Hynix or any controlled Affiliate of Hynix, or
(xvii) any contract with, obligation to or transaction or series of transactions between, the Company or any Subsidiary and one or more of its securityholders or their Affiliates.
Appears in 1 contract
Sources: Shareholder Agreement (SMART Modular Technologies (DE), Inc.)
Action by the Board. The Core Shareholders and the Company agree that:
(a) A quorum of the Board shall consist initially of three directors of which at least (i) one shall be a majority of the total number of directors, which such majority DLJMB representative and (ii) one shall include a majority of the designees of be either the CVC US Designator and a majority of the designees of the FP Designator; provided that in the event that either of the CVC US Designator representative or the FP Designator, has the right to designate fewer than three directors pursuant to Section 2.01 hereof, a quorum shall exist if at least one Core Director designated by such Person is presentMMI representative.
(b) All actions of the Board shall require (i) the affirmative vote of at least a majority of the directors present at a duly convened meeting of the Board at which a quorum is present or (ii) the unanimous written consent of the Board, ; provided that, in the event that there is a vacancy on the Board and an individual has been nominated to fill such vacancy, the first order of business shall be to fill such vacancy.
(c) The Board may create executive, compensation, audit and such other committees as it may determine. Except with respect to the audit committee, the (i) Institutional Securityholders together shall be entitled to majority representation on any committee created by the Board, half of which such majority representation shall consist of a Core Director or Directors designated by the CVC US Designator and half of which such majority representation shall consist of a Core Director or Directors designated by the FP Designator, (ii) CVC Asia Pacific Investors or their Permitted Transferees shall be entitled to minority representation on each committee created by the Board, and (iii) Company and each Core Shareholder entitled to vote for the election of the chairman of any committee (in its capacity as a Securityholder, director of the Board, member of a committee, or otherwise) created by the Board will take all necessary action to ensure that the chairman of such committee is a director designated by the CVC US Designator or the FP Designator in accordance with Section 2.01, in each case until such time as the committee members designated by such Core Shareholders are required to be removed as a result of the Company no longer qualifying as a “controlled company” (within the meaning of the principal securities exchange or quotation system on which the Common Shares are traded or quoted and solely in connection with the ownership of Common Shares by the Core Shareholders).
(d) Until such time as the Company no longer qualifies as a “controlled company” (within the meaning of the principal securities exchange or quotation system on which the Common Shares are traded or quoted and solely in connection with the ownership of Common Shares by the Core Shareholders), no No action by the Company (including but not limited to any action by the Board or any committee thereof) shall be taken after the date hereof with respect to any of the following matters without the affirmative approval of the Board Board, including, (I) by at least one DLJMB representative for so long as the Percentage Ownership of the DLJ Entities equals or exceeds 331/3% of their Initial Ownership of Common Stock on a Fully Diluted basis and either (II) by at least one of (A) the CVC US Securityholder Representative or representative for so long as the FP Securityholder Representative, in each case, in its capacity as agent for Persons comprising CVC US and FP, in each case, in its capacity as a Securityholder; provided that the vote of a Core Director designated by the CVC US Designator or the FP Designator in favor of any action for which approval is required pursuant to this Section 2.05(d) shall constitute the consent Percentage Ownership of the CVC US Securityholder Representative Entities equals or exceeds 331/3% of their Initial Ownership of Common Stock on a Fully Diluted basis or (in B) the case MMI representative for so long as the Percentage Ownership of the MMI Entities equals or exceeds 331/3% of their Initial Ownership of Common Stock on a vote of a director designated by the CVC US Designator) and the FP Securityholder Representative (in the case of a vote of a director designated by the FP Designator) in its capacity as agent for Persons comprising CVC US and FP, in each case, in its capacity as a SecurityholderFully Diluted basis:
(1i) (x) any merger or consolidation of the Company with or into any Person, other than a wholly owned Subsidiary, or of any Subsidiary with or into any Person other than the Company or any other wholly wholly-owned SubsidiarySubsidiary (other than the merger of LMS II, Co. with and into Formica Corporation and the merger of LMS III, Co. with and into Formica International Corporation); or (2y) any acquisition in excess of $10,000,000 (other than the Fountainhead Acquisition) or any sale of the Company or any Subsidiary or any significant operations of the Company or any Subsidiary or any joint venture transaction, acquisition disposition or disposition distribution in excess of $5,000,000 of assets, business, businesses or operations or securities by the Company or any Subsidiary (in a single transaction or a series of related transactions) having a value ), other than products or supplies acquired, disposed of or distributed in each case in this clause (2) in excess the ordinary course of $3,000,000,business;
(ii) the declaration of any dividend on or the making of any distribution with respect to, or the recapitalization, reclassification, redemption, repurchase or other acquisition of, any securities of the Company or any Subsidiary, except as expressly permitted by this Agreement,
(iii) any liquidation, dissolution, commencement of bankruptcy, liquidation or similar proceedings with respect to the Company or any Subsidiary,;
(iviii) any incurrence, refinancing, refinancing or alteration of material terms or prepayment by the Company or any Subsidiary of indebtedness for borrowed money in excess of $2,000,000 5,000,000 in the aggregate (or the guaranty by the Company or any Subsidiary of any such indebtedness), or the issuance of any security by the Company or any Subsidiary (not including issuances of such securities in connection with employee or stock option plans previously approved by the Board pursuant to clause (viivi) below), in each case other than as specifically contemplated by this Agreement,, the Warrants or the LMS Preferred Stock;
(viv) any capital expenditure or capital lease in excess of $1,000,000 5,000,000, which is not specifically contemplated by the annual business plan of the Company or any Subsidiary,;
(viv) any entering into, amending or modifying in any material respect of any agreements of the Company or any Subsidiary providing for payments by or to the Company or such Subsidiary in excess of $2,000,000 5,000,000 per annum or $5,000,000 in the aggregate,annum;
(viivi) any determination of compensation, benefits, perquisites and other incentives for (a) senior management or (b) any other employee whose annual compensation is or will be as a result of such determination in excess of $100,000 per year, of the Company or its Subsidiaries any Subsidiary and the approval or amendment of any plans or contracts in connection therewith, including the award of any option or similar rights to subscribe for shares (excluding grants to ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ and ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ on the Closing Date);
(vii) any transaction between the Company or any Subsidiary, on the one hand, and any approval stockholder or amendment to any equity or other compensation or benefit plans for employees Affiliate of the Company or its Subsidiaries,any Subsidiary, on the other hand, other than transactions involving an amount less than $25,000;
(viii) any appointment or dismissal removal of any of the Chairman of the Board, Chief Executive Officer, President, Chief Financial Officer or Chief Operating Officer or any other executive officer in any similar capacity of the Company Company, FM Holdings or any Subsidiary,Formica;
(ix) any change in accounting or tax principles, policies with respect to the financial statements, records or affairs of the Company or any Subsidiary, except as required by generally accepted accounting principles or by law or any other matters that which could affect any regulatory status or tax liability of the Company or any Subsidiary, or any Securityholder Shareholder with respect to the investment by such Securityholder Shareholder in the Company,;
(x) any appointment or removal of the auditors, regular legal counsel, financial advisors, underwriters (except underwriters selected as provided in the first sentence of Section 5.04(f), unless such Demand Registration constitutes a First Public Offering)underwriters, investment bankers or company-wide insurance providers of the Company Company, FM Holdings or any Subsidiary,Formica;
(xi) any amendment to this Agreement, any exercise or waiver of the Company’s rights under this Agreement, any amendment to an Organizational Document or similar organizational documents of any Subsidiary,
(xii) any approval of the annual business plan, budget and long-long term strategic plan of the Company Company, FM Holdings or any Subsidiary,Formica;
(xiiixii) any modification of the long-term business strategy or scope of the business of the Company Company, FM Holdings or any Subsidiary Formica or any material customer relationships thereof,;
(xiii) the commencement of any litigation with claims in excess of $10,000,000 or the settlement of litigation or arbitration proceedings with damages in excess of $5,000,000;
(xiv) any increase delegation by the Board or decrease to the number of directors that comprise the entire Board of the Company or board of directors of FM Holdings or Formica of any Subsidiary,of its respective powers to a committee; or
(xv) any entry into or modification the determination of any contract with a labor union (including any collective bargaining agreement),"Fair Market Value" for purposes of Section 4.05.
(xvid) Notwithstanding Section 2.04(c), if any entry into or modification of any contract with, obligation to or transaction or series of transactions between (1) action set forth therein arises in connection with the Company or any Subsidiary and (2) Hynix or any controlled Affiliate of Hynix, or
(xvii) any contract with, obligation to or transaction or series of transactions between, the Company or any Subsidiary and one or more Company's exercise of its securityholders or their Affiliatesrights pursuant to Section 4.04, such action shall not require the approval of the Section 4.04 Seller's representative to the Board.
Appears in 1 contract
Sources: Investors' Agreement (Formica Corp)
Action by the Board. The Core Shareholders and the Company agree that:
(a) A quorum of the Board shall consist of a majority of the total number of directors, which provided that such majority shall include a majority of at least one director designated by the designees of Quadrangle Entities who is not an Independent Director and at least one director designated by the CVC US Designator Entities who is not an Independent Director, respectively, for so long as the Quadrangle Entities and a majority of the designees of the FP Designator; provided that in the event that either of the CVC US Designator or the FP DesignatorEntities, has the right respectively, are entitled to designate fewer than three one or more directors pursuant to Section 2.01 hereof, a quorum shall exist if at least one Core Director designated by such Person is present.
(b) All actions of the Board shall require (i) the affirmative vote of at least a majority of the directors present at a duly convened meeting of the Board at which a quorum is present (in person or telephonically) or (ii) the unanimous written consent of the Board, provided that, in the event that there is a vacancy on the Board and an individual has been nominated to fill such vacancy, the first order of business shall be to fill such vacancy.
(c) The Board may create executive, compensation, audit and such other committees as it may determine. Except with respect The Quadrangle Entities and the CVC Entities shall have the right to designate a number of directors comprising each such committee that is proportionate to the audit committee, the (i) Institutional Securityholders together shall be number of directors that such Shareholders are entitled to majority representation on designate pursuant to Section 2.01; provided that no such Shareholder shall have the right to designate any committee created by the Board, half of which such majority representation shall consist of a Core Director or Directors designated by the CVC US Designator and half of which such majority representation shall consist of a Core Director or Directors designated by the FP Designator, (ii) CVC Asia Pacific Investors or their Permitted Transferees shall be entitled to minority representation on each committee created by the Board, and (iii) Company and each Core Shareholder entitled to vote for the election of the chairman of any committee (in its capacity as a Securityholder, director of the Board, member of a committee, or otherwise) created by the Board will take all necessary action to ensure that the chairman of such special committee is a director designated by the CVC US Designator or the FP Designator in accordance with Section 2.01, in each case until such time as the committee members designated by such Core Shareholders are required to be removed as a result of the Company no longer qualifying as a “controlled company” (within the meaning of the principal securities exchange or quotation system on which the Common Shares are traded or quoted and solely formed in connection with any transaction, or proposed transaction, between the ownership Company or any Subsidiary, on the one hand, and such Shareholder or an Affiliate of Common Shares by such Shareholder, on the Core Shareholders)other hand.
(d) Until such time as the Company no longer qualifies as a “controlled company” (within the meaning of the principal securities exchange or quotation system on which the Common Shares are traded or quoted and solely in connection with the ownership of Common Shares by the Core Shareholders), no No action by the Company (including but not limited to any action by the Board or any committee thereof) shall be taken after the date hereof of the Original Agreement, and the Company shall not permit any action to be taken by any Subsidiary or any Joint Venture (but only, with respect to any Joint Venture, to the extent that the Company or a Subsidiary has the right pursuant to the terms of such Joint Venture to not permit such action to be taken), with respect to any of the following matters without the affirmative approval of the Board and either the CVC US Securityholder Representative or the FP Securityholder Representative, in each case, in its capacity as agent for Persons comprising CVC US and FP, in each case, in its capacity as a Securityholder; provided that the vote of a Core Director designated by the CVC US Designator or the FP Designator in favor of any action for which approval is required pursuant to this Section 2.05(d) shall constitute the consent of the CVC US Securityholder Representative (in the case of a vote of a director designated by the CVC US Designator) and the FP Securityholder Representative (in the case of a vote of a director designated by the FP Designator) in its capacity as agent for Persons comprising CVC US and FP, in each case, in its capacity as a SecurityholderBoard:
(i) (1) any merger or consolidation of the Company Company, any Subsidiary or any Joint Venture with or into any Person, other than a wholly owned Subsidiary, or of any Subsidiary or Joint Venture with or into any Person other than the Company or any other wholly owned Subsidiary, or (2) any sale of the Company or Company, any Subsidiary Subsidiary, any Joint Venture or any significant operations of the Company or Company, any Subsidiary or any joint venture transaction, Joint Venture or (3) any acquisition or disposition of assets, business, operations or securities by the Company Company, any Subsidiary or any Subsidiary Joint Venture (in a single transaction or a series of related transactions) having a value in each case in this clause (23) in excess of $3,000,000,;
(ii) the declaration of any dividend on or the making of any distribution with respect to, or the recapitalization, reclassification, redemption, repurchase or other acquisition of, any securities of the Company Company, any Subsidiary or any SubsidiaryJoint Venture, except (i) as expressly permitted by this Agreement,Agreement or the Charter and (ii) any dividend made from a Subsidiary of the Company to another Subsidiary of the Company or from a Subsidiary of the Company to the Company;
(iii) any liquidation, dissolution, commencement of bankruptcy, liquidation or similar proceedings with respect to the Company Company, any Subsidiary or any Subsidiary,Joint Venture;
(iv) any incurrence, refinancing, alteration of material terms or prepayment by the Company Company, any Subsidiary or any Subsidiary Joint Venture of indebtedness for borrowed money in excess of $2,000,000 in the aggregate (or the guaranty by the Company Company, any Subsidiary or any Subsidiary Joint Venture of any such indebtedness), or the issuance or registration with the SEC of any security by the Company Company, any Subsidiary or any Subsidiary Joint Venture, in each case other than (not including issuances i) pursuant to the First Lien Credit Agreement dated as of such securities February 24, 2005, among NTELOS Inc., the subsidiary guarantors named therein, the initial lenders, initial issuing bank and swing line bank each as named therein, ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ Senior Funding, Inc., as administrative agent, ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & Co. Incorporated, as collateral agent and Bear ▇▇▇▇▇▇▇ Corporate Lending Inc., as syndication agent, (ii) the Second Lien Credit Agreement dated as of February 24, 2005, among NTELOS Inc., the subsidiary guarantors named therein, the lenders named therein, ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ Senior Funding, Inc., as administrative agent, ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & Co. Incorporated, as collateral agent and Bear ▇▇▇▇▇▇▇ Corporate Lending Inc., as syndication agent, (iii) pursuant to any other revolving credit agreement previously approved by the Board in connection compliance with this Section 2.05(d), (iv) pursuant to any employee or stock option plans previously approved by the Board pursuant to clause in compliance with this Section 2.05(d) or (viiv) below), in each case other than as specifically contemplated by this Agreement,;
(v) any individual or related series of capital expenditures or capital leases which are inconsistent in any material respect with the annual capital expenditure or capital lease in excess of $1,000,000 which is not specifically contemplated budget approved by the annual business plan of the Company or any Subsidiary,Board in compliance with this Section 2.05(d);
(vi) any entering into, amending or modifying in any material respect of any agreements agreement of the Company Company, any Subsidiary or any Subsidiary providing for payments by or Joint Venture, which is made outside the ordinary course of business and is material to the Company or such Subsidiary in excess of $2,000,000 per annum or $5,000,000 in the aggregate,and its Subsidiaries as a whole;
(vii) any entering into of any agreement, indenture or other instrument that contains any provision that would restrict either the payment of dividends on the Company Common Stock or the repurchase of Company Common Stock in accordance with Section 4.04;
(viii) any determination of compensation, benefits, perquisites and or other incentives for (a) senior management or (b) any other employee whose annual compensation is or will be as a result of such determination in excess of $100,000 per year, executive officers of the Company Company, any Subsidiary or its Subsidiaries and any Joint Venture or the approval or amendment of any plans or contracts in connection therewith, and any approval of or amendment to any equity or other compensation or benefit plans for employees of the Company Company, Subsidiary or its Subsidiaries,any Joint Venture or the grant of any stock option or other equity compensation to any employee of the Company, any Subsidiary or any Joint Venture, other than any such determinations, amendments or grants (i) required by law, (ii) to satisfy agreements currently in place or deliver the benefits intended thereunder or (iii) to renew insurance or administrative service contracts relating to benefits plans if such renewals come due in the ordinary course;
(viiiix) any appointment or dismissal of any of the Chairman of the Board, Chief Executive Officer, President, Chief Financial Officer or Officer, Chief Operating Officer Officer, any division head or any other executive officer in any similar capacity of the Company Company, any Subsidiary or any Subsidiary,
(ix) any change in accounting or tax principles, policies with respect to the financial statements, records or affairs of the Company or any Subsidiary, except as required by generally accepted accounting principles or by law or any other matters that could affect any regulatory status or tax liability of the Company or any Subsidiary, or any Securityholder with respect to the investment by such Securityholder in the Company,Joint Venture;
(x) any appointment or removal of the auditors, regular legal counsel, financial advisors, underwriters (except underwriters selected as provided in the first sentence of Section 5.04(f), unless such Demand Registration constitutes a First Public Offering)underwriters, investment bankers or or, other than in connection with renewals of coverage at comparable levels in the ordinary course, company-wide insurance providers of the Company Company, any Subsidiary or any Subsidiary,Joint Venture;
(xi) any amendment to this Agreement, any exercise or waiver of the Company’s rights under this Agreement, any amendment to an Organizational Document the Charter or similar Bylaws or any adoption of or amendment to the certificate of incorporation, bylaws or other organizational documents of any Subsidiary,Subsidiary or Joint Venture;
(xii) any approval of the annual business plan, budget, capital expenditure budget and or long-term strategic plan of the Company Company, any Subsidiary or any Subsidiary,Joint Venture;
(xiii) any modification of the long-term business strategy or scope of the business of the Company or Company, any Subsidiary or any material customer relationships thereof,Joint Venture;
(xiv) any increase or decrease to the number of directors that comprise the entire Board of the Company or board of directors or similar governing body of the Company, any Subsidiary,Subsidiary or any Joint Venture;
(xv) any entry into or modification of any contract with a labor union (including any collective bargaining agreement),
(xvi) any entry into or modification of any contract with, obligation to or transaction or series of transactions between (1) the Company or any Subsidiary and (2) Hynix or any controlled Affiliate of Hynix, or
(xvii) any contract with, obligation to or transaction or series of transactions between, the Company Company, any Subsidiary or any Subsidiary Joint Venture, on the one hand, and one or more of its securityholders stockholders, other equityholders or their respective Affiliates, on the other hand;
(xvi) any initiation or settlement of any material litigation, arbitration, mediation or other dispute resolution proceeding outside of the ordinary course of business; or
(xvii) the entry into, or the termination, disposition or material amendment of the terms of, any Joint Venture.
Appears in 1 contract
Action by the Board. The Core Shareholders and the Company agree that:
(a) A quorum of the Board shall consist initially of four directors; provided, whenever more or less than seven directors are serving on the Board, a quorum shall consist of a majority of the total number of directorsdirectors then serving. Subject to the additional requirements under Section 2.4(b), which such majority shall include a majority of the designees of the CVC US Designator and a majority of the designees of the FP Designator; provided that in the event that either of the CVC US Designator or the FP Designator, has the right to designate fewer than three directors pursuant to Section 2.01 hereof, a quorum shall exist if at least one Core Director designated by such Person is present.
(b) All all actions of the Board shall require (i) the affirmative vote of at least a majority of the directors present at a duly convened meeting of the Board at which a quorum is present or (ii) the unanimous written consent of the Board, ; provided that, in the event that there is a vacancy on the Board and an individual has been nominated to fill such vacancy, the first order of business shall be to fill such vacancy.
(c) The Board may create executive, compensation, audit and such other committees as it may determine. Except with respect to the audit committee, the (i) Institutional Securityholders together shall be entitled to majority representation on any committee created by the Board, half of which such majority representation shall consist of a Core Director or Directors designated by the CVC US Designator and half of which such majority representation shall consist of a Core Director or Directors designated by the FP Designator, (ii) CVC Asia Pacific Investors or their Permitted Transferees shall be entitled to minority representation on each committee created by the Board, and (iii) Company and each Core Shareholder entitled to vote for the election of the chairman of any committee (in its capacity as a Securityholder, director of the Board, member of a committee, or otherwise) created by the Board will take all necessary action to ensure that the chairman of such committee is a director designated by the CVC US Designator or the FP Designator in accordance with Section 2.01, in each case until such time as the committee members designated by such Core Shareholders are required to be removed as a result of the Company no longer qualifying as a “controlled company” (within the meaning of the principal securities exchange or quotation system on which the Common Shares are traded or quoted and solely in connection with the ownership of Common Shares by the Core Shareholders).
(db) Until such time as the Company no longer qualifies as a “controlled company” (within the meaning consummation of the principal securities exchange or quotation system on which the Common Shares are traded or quoted and solely in connection with the ownership of Common Shares by the Core Shareholders)an Initial Public Offering, no action by the Company (including but not limited to any action by the Board or any committee thereof) shall be taken after the date hereof with respect to any of the following matters without the affirmative approval of the Board Board, which majority must include (i) at least one of the Chase Designees and either (ii) at least one of (A) for so long as the CVC US Securityholder Representative or Summit Investors own at least 33 1/3% of the FP Securityholder Representativenumber of shares of Common Stock owned thereby as of August 3, 1998 (treating, for these purposes, the Warrants on an as if exercised basis and, in each case, disregarding stock splits, recapitalizations and similar adjustments in its capacity number of shares and stock dividends), the Summit-Investor Designee or (B) for so long as agent the Wind▇ ▇▇▇▇ ▇▇▇estors own at least 50% of the number Second Amended and Restated Investors' Agreement 13 17 of shares of Common Stock owned thereby as of August 3, 1998 (treating, for Persons comprising CVC US and FPthese purposes, the Warrants on an as if exercised basis and, in each case, disregarding stock splits, recapitalizations and similar adjustments in its capacity as a Securityholder; provided that number of shares and stock dividends), the vote of a Core Director designated by the CVC US Designator or the FP Designator in favor of any action for which approval is required pursuant to this Section 2.05(d) shall constitute the consent of the CVC US Securityholder Representative (in the case of a vote of a director designated by the CVC US Designator) and the FP Securityholder Representative (in the case of a vote of a director designated by the FP Designator) in its capacity as agent for Persons comprising CVC US and FP, in each case, in its capacity as a SecurityholderWind▇ ▇▇▇▇ ▇▇▇ignee:
(1i) (x) any merger or consolidation of the Company with or into any Person, other than a wholly owned Subsidiary, or of any Subsidiary with or into any Person other than the Company or any other wholly wholly-owned Subsidiary, ; or (2y) any sale of the Company or any Subsidiary or any significant operations of the Company or any Subsidiary or any joint venture transaction, acquisition or disposition of assets, business, operations or securities by the Company or any Subsidiary (in a single transaction or a series of related transactions) having a value in each case in this clause (2y) in excess of $3,000,000,25,000,000;
(ii) the declaration of any dividend on or the making of any distribution with respect to, or the recapitalization, reclassification, redemption, repurchase or other acquisition of, any securities of the Company or any Subsidiary, except as expressly permitted by this Agreement,Agreement or the Certificate of Designations of the Preferred Stock and except for repurchases of securities from individuals in connection with the termination of their employment;
(iii) any liquidation, dissolution, commencement of bankruptcy, liquidation or similar proceedings with respect to the Company or any Subsidiary,;
(iv) (A) any incurrence, refinancing, alteration of material terms or prepayment incurrence by the Company or any Subsidiary of indebtedness for borrowed money in excess of $2,000,000 25,000,000 in the aggregate (or the guaranty by the Company or any Subsidiary of any such indebtedness), ) other than an incurrence or guaranty permitted by the existing terms of the credit facilities of the Company or any Subsidiary thereof or (B) any issuance of any security by the Company or any Subsidiary (not including other than issuances of such securities in connection with any employee stock offering or any stock option plans previously plan approved by the Board pursuant to clause or as consideration in any acquisition (vii) belowwhether stock purchase, asset purchase or merger), which acquisition has been approved in each case other than as specifically contemplated by accordance with this Agreement,Agreement including Section 2.4(b)(i) if applicable to such acquisition;
(v) any capital expenditure transaction or capital lease in excess series of $1,000,000 which is related transactions (not specifically contemplated otherwise expressly permitted by the annual business plan of this Agreement) between the Company or any Subsidiary,
(vi) any entering into, amending or modifying in any material respect of any agreements of on the Company or any Subsidiary providing for payments by or to the Company or such Subsidiary in excess of $2,000,000 per annum or $5,000,000 in the aggregate,
(vii) any determination of compensation, benefits, perquisites and other incentives for (a) senior management or (b) any other employee whose annual compensation is or will be as a result of such determination in excess of $100,000 per year, of the Company or its Subsidiaries and the approval or amendment of any plans or contracts in connection therewithone hand, and any approval stockholder or amendment to any equity or other compensation or benefit plans for employees of the Company or its Subsidiaries,
(viii) any appointment or dismissal of any of the Chairman of the Board, Chief Executive Officer, President, Chief Financial Officer or Chief Operating Officer or any other executive officer in any similar capacity of the Company or any Subsidiary,
(ix) any change in accounting or tax principles, policies with respect to the financial statements, records or affairs Affiliate of the Company or any Subsidiary, except as required by generally accepted accounting principles on the other hand, other than transactions involving an amount less than $500,000;
(vi) the appointment of the Chief Executive Officer;
(vii) any amendment to the certificate of incorporation or by law or any other matters that could affect any regulatory status or tax liability bylaws of the Company or any Subsidiary, adoption of or any Securityholder with respect amendment to the investment by such Securityholder in certificate of incorporation or bylaws of any significant Subsidiary (i.e. any Subsidiary whose revenues for the Company,latest twelve month period are at least equal to 10% of the consolidated revenues of the Company and all of its Subsidiaries);
(viii) the approval of any Person as a Permitted Transferee under clause (x) any appointment or removal of the auditors, regular legal counsel, financial advisors, underwriters (except underwriters selected as provided in the first sentence definition of Section 5.04(f), unless such Demand Registration constitutes a First Public Offering), investment bankers or company-wide insurance providers of the Company or any Subsidiary,"Permitted Transferee"; or
(xiix) any amendment to this Agreement, any exercise or waiver of the Company’s rights under this Agreement, any amendment to an Organizational Document or similar organizational documents of any Subsidiary,
(xii) any approval definition of the annual business planterm "Permitted Transferee", budget and long-term strategic plan which amendment shall be consistent with the intention of the Company or any Subsidiary,
(xiii) any modification of the long-term business strategy or scope of the business of the Company or any Subsidiary or any material customer relationships thereof,
(xiv) any increase or decrease to the number of directors that comprise the entire Board of the Company or board of directors of any Subsidiary,
(xv) any entry into or modification of any contract with a labor union (including any collective bargaining agreement),
(xvi) any entry into or modification of any contract with, obligation to or transaction or series of transactions between (1) the Company or any Subsidiary and (2) Hynix or any controlled Affiliate of Hynix, or
(xvii) any contract with, obligation to or transaction or series of transactions between, the Company or any Subsidiary and one or more of its securityholders or their Affiliatesparties hereunder.
Appears in 1 contract
Action by the Board. The Core Shareholders and the Company agree that(a) Except as otherwise provided in this Section 3.08 or by Law:
(ai) A quorum meetings of the Board shall consist be held at least quarterly;
(ii) a majority of directors shall be present in person or by telephone at any meeting of the Board, with at least one (1) director nominated by each Veto Shareholder present, in order to constitute a quorum for the transaction of business at such meeting; provided, however, that in the event a quorum is not present at any meeting of the Board at which the transaction of business does not require a Qualified Vote pursuant to Section 3.08(b), then such matter shall be postponed to a Board meeting to be held five (5) Business Days after the first meeting at which the presence of a majority of the total number of directors, which such majority directors in person or by telephone shall include a majority of the designees of the CVC US Designator and a majority of the designees of the FP Designator; provided that in the event that either of the CVC US Designator or the FP Designator, has the right to designate fewer than three directors pursuant to Section 2.01 hereof, constitute a quorum shall exist if for the transaction of business at least one Core Director designated by such Person is present.second Board meeting; and
(biii) All all actions of the Board shall require (i) the affirmative vote of at least a the majority of the directors present and entitled to vote on the action then being considered at a duly convened meeting of the Board at which a quorum is present or (ii) or, in lieu of a meeting, by the unanimous written consent of the members of the Board, provided that, in the event that there is a vacancy on the Board and an individual has been nominated to fill such vacancy, the first order of business shall be to fill such vacancy.
(cb) The Board Notwithstanding the provisions of Section 3.08(a) and notwithstanding that no vote may create executive, compensation, audit and such other committees as it may determine. Except with respect to the audit committee, the (i) Institutional Securityholders together shall be entitled to majority representation on any committee created by the Board, half of which such majority representation shall consist of a Core Director or Directors designated by the CVC US Designator and half of which such majority representation shall consist of a Core Director or Directors designated by the FP Designator, (ii) CVC Asia Pacific Investors or their Permitted Transferees shall be entitled to minority representation on each committee created by the Board, and (iii) Company and each Core Shareholder entitled to vote for the election of the chairman of any committee (in its capacity as a Securityholder, director of the Board, member of a committeerequired, or that a lesser percentage vote may be required, by Law or otherwise) created by the Board will take all necessary action to ensure that the chairman of such committee is a director designated by the CVC US Designator or the FP Designator in accordance with Section 2.01, in each case until such time as the committee members designated by such Core Shareholders are required to be removed as a result of the Company no longer qualifying as a “controlled company” (within the meaning of the principal securities exchange or quotation system on which the Common Shares are traded or quoted and solely in connection with the ownership of Common Shares by the Core Shareholders).
(d) Until such time as the Company no longer qualifies as a “controlled company” (within the meaning of the principal securities exchange or quotation system on which the Common Shares are traded or quoted and solely in connection with the ownership of Common Shares by the Core Shareholders), no action by the Company (including but except as provided below at the end of this subsection or in Section 5.05(b) or (e)) shall not limited take, and no party to this Agreement shall cause the Company to take, any action by the Board or any committee thereof) shall be taken after the date hereof with respect to any of the following matters without the affirmative approval vote of at least one (1) director nominated by each Shareholder permitted to nominate two (2) or more directors to the Board and either the CVC US Securityholder Representative or the FP Securityholder Representative, in each case, in its capacity as agent for Persons comprising CVC US and FP, in each case, in its capacity as a Securityholder; provided that the vote of a Core Director designated by the CVC US Designator or the FP Designator in favor of any action for which approval is required pursuant to this Section 2.05(d3.04(a) shall constitute the consent of the CVC US Securityholder Representative (and, in the case of a meeting of Shareholders called to approve such actions, the affirmative vote of a director designated by each Veto Shareholder (the CVC US Designator"Qualified Vote") and the FP Securityholder Representative (in the case of a vote of a director designated by the FP Designator) in its capacity as agent for Persons comprising CVC US and FP, in each case, in its capacity as a Securityholder:
(1) any merger or consolidation of the Company with or into any Person, other than a wholly owned Subsidiary, or of any Subsidiary with or into any Person other than the Company or any other wholly owned Subsidiary, or (2) any sale of the Company or any Subsidiary or any significant operations of the Company or any Subsidiary or any joint venture transaction, acquisition or disposition of assets, business, operations or securities by the Company or any Subsidiary (in a single transaction or a series of related transactions) having a value in each case in this clause (2) in excess of $3,000,000,
(ii) the declaration of any dividend on or the making of any distribution with respect to, or the recapitalization, reclassification, redemption, repurchase or other acquisition of, any securities of the Company or any Subsidiary, except as expressly permitted by this Agreement,
(iii) any liquidation, dissolution, commencement of bankruptcy, liquidation or similar proceedings with respect to the Company or any Subsidiary,following actions:
(ivi) the approval of (A) any incurrencematerial amendments to the Initial Business Plan, refinancing(B) from time to time after the term of the Initial Business Plan, alteration of material terms or prepayment by the Company or any Subsidiary of indebtedness for borrowed money in excess of $2,000,000 in the aggregate (or the guaranty by the Company or any Subsidiary of any such indebtedness), or the issuance of any security by the Company or any Subsidiary (not including issuances of such securities in connection with employee or stock option plans previously approved by the Board pursuant to clause (vii) below), in each case other than as specifically contemplated by this Agreement,
(v) any capital expenditure or capital lease in excess of $1,000,000 which is not specifically contemplated by the annual budget and multi-year business plan of the Company or any Subsidiary,
(vi) any entering into, amending or modifying in any material respect of any agreements of the Company or any Subsidiary providing for payments by or to the Company or such Subsidiary in excess of $2,000,000 per annum or $5,000,000 in the aggregate,
(vii) any determination of compensation, benefits, perquisites and other incentives for (a) senior management or (b) any other employee whose annual compensation is or will be as a result of such determination in excess of $100,000 per year, of the Company or its Subsidiaries and the approval or amendment of any plans or contracts in connection therewith, and any approval or amendment to any equity or other compensation or benefit plans for employees of the Company or its Subsidiaries,
(viii) any appointment or dismissal of any of the Chairman of the Board, Chief Executive Officer, President, Chief Financial Officer or Chief Operating Officer or any other executive officer in any similar capacity of the Company or any Subsidiary,
(ix) any change in accounting or tax principles, policies with respect to the financial statements, records or affairs of the Company or any Subsidiary, except as required by generally accepted accounting principles or by law or any other matters that could affect any regulatory status or tax liability of the Company or any Subsidiary, or any Securityholder with respect to the investment by such Securityholder in the Company,
(x) any appointment or removal of the auditors, regular legal counsel, financial advisors, underwriters (except underwriters selected as provided in the first sentence of Section 5.04(f), unless such Demand Registration constitutes a First Public Offering), investment bankers or company-wide insurance providers of the Company or any Subsidiary,
(xi) any amendment to this Agreement, any exercise or waiver of the Company’s rights under this Agreement, any amendment to an Organizational Document or similar organizational documents of any Subsidiary,
(xii) any approval of the annual business plan, budget and long-term strategic plan of the Company or any Subsidiary,
(xiii) any modification of the long-term business strategy or scope of the business of the Company or any Subsidiary or any material customer relationships thereof,
(xiv) any increase or decrease to the number of directors that comprise the entire Board of the Company or board of directors of any Subsidiary,
(xv) any entry into or modification of any contract with a labor union (including any collective bargaining agreement),
(xvi) any entry into or modification of any contract with, obligation to or transaction or series of transactions between ; which shall include (1) the Company or any Subsidiary projected statements of income, cash flows and balance sheet; (2) Hynix or any controlled Affiliate of Hynix, or
(xvii) any contract with, obligation to or transaction or series of transactions between, all material capital expenditures for the Company or any Subsidiary and one or more of its securityholders or their Affiliates.the Intermediate Companies; and
Appears in 1 contract