Approval Required. (a) The Board shall have authority with respect to all aspects of the operation of the Company, provided, however, that except as set forth in Schedule 3, none of Parent, the Company or any of the Company’s Subsidiaries shall take any action with respect to the following matters relating to the Company or any of the Company’s Subsidiaries (collectively, the “Consent Matters”), except with the prior written consent of Investor: (i) a dissolution, liquidation or winding-up; (ii) any disposition (including the amendment or termination of any organization documents of, or contractual arrangements with, a VIE of the Company that prevents the consolidation of such VIE with the Company) that exceeds $30 million in any single transaction or series of related transactions or $100 million in the aggregate over any 12-month period (in each case, whether such amounts are the consideration received or the fair value of assets disposed or a VIE no longer consolidated with the Company); (iii) any Material Related Party Transaction; (iv) any declaration, making or payment of any dividend or distribution (whether in cash, securities or other property) or other than pursuant to an equity-based incentive plan approved by the Relevant Board (including the Option Plan) and in accordance with Section 2.03(a)(vii), any buy-back of securities or reduction of share capital, other than the Redemption (as defined in the Share Purchase Agreement) and the Post-Closing Redemption; (v) any amendment to the Articles of Association or the constitutional documents of any of the Company’s Subsidiaries that disproportionately and adversely affect in any material respect the rights of Investor as a shareholder of the Company; provided that any amendments to the terms of the Preferred Shares shall be subject to a class vote of the holders of Preferred Shares in accordance with applicable Law and the Articles of Association; (vi) any issuance of Securities, other than (A) at any time following April 29, 2014, issuances (whether in any one transaction or together with all other transactions) of Securities that represent, in the aggregate, no more than 15% of Fully-Diluted Equity; (B) on or prior to April 29, 2014, issuances (whether in any one transaction or together with all other transactions) of Securities that represent, in the aggregate, no more than 15% of Fully-Diluted Equity, provided that each such issuance is consummated at a price per Ordinary Share (on an as-converted basis) that is no lower than the highest price per Ordinary Share (on an as-converted basis) paid by Investor for the Acquired Shares (as adjusted for share splits, share dividends, combinations, reclassifications, recapitalizations and the like) and the terms of each such issuance are not more favorable in any material respect to the purchaser(s) or subscriber(s) of such Securities than the terms of Investor’s purchase of the Acquired Shares; (C) issuances of Securities pursuant to an equity-based incentive plan approved by the Relevant Board, including the Option Plan; (D) issuances of Securities on a pro rata basis in connection with any share splits, share dividends, combinations, reclassifications, recapitalizations, rights issuances and the like; (E) issuances of Securities to be offered in a Qualified IPO; (F) issuances of Securities upon the conversion or exchange of convertible or exchangeable Securities issued in accordance with this Agreement, pursuant to the terms of such Securities; or (G) Securities issued upon the conversion of any Preferred Shares; (vii) any establishment of, or amendment to, any equity-based incentive plan that would result (whether in any one transaction or together with all other transactions) in the Securities issuable upon the exercise, conversion or exchange of the options and other equity awards authorized under all equity-based incentive plans of the Company (including the Option Plan and other existing equity-based incentive plans of the Company), in the aggregate, exceeding 43,750,000 Ordinary Shares (as adjusted for share splits, share dividends, combinations, reclassifications, recapitalizations and the like); (viii) any creation of any mortgages, charges, pledges, security interests, liens or other encumbrances in respect of any Indebtedness in excess of $100 million in the aggregate over any 12-month period; (ix) any incurrence of Indebtedness in excess of $100 million in the aggregate over any 12-month period; or (x) any entry into, or termination or amendment of any non-ordinary course exclusive license or other contract that primarily relates to, or whose principal value is derived from, an exclusive license, or any sale or other transfer to a third party of any material Intellectual Property owned by the Company or any of its Subsidiaries. provided, that in no event shall any of the foregoing be construed as requiring Parent, the Company or any of the Company’s Subsidiaries to obtain the consent of Investor with respect to actions reasonably necessary to effect a Qualified IPO. (b) The Consent Matters set forth in subsections (i), (iv), (v), (viii) and (ix) above shall be referred to as the “Qualified Consent Matters”. Investor’s right of consent in respect of each of the Qualified Consent Matters shall terminate upon the earlier of (i) the consummation of a Qualified IPO and (ii) the consummation of a Qualified Transfer; provided, however, that in the case of a Qualified Transfer, (A) the consent rights in respect of the Qualified Consent Matters shall survive in respect of any Person (including any Third Party) to whom Investor directly effects a transfer (the “First Transferee”), in accordance with the provisions of Article IV, of a number of Ordinary Shares (on an as-converted basis) greater than 75% of the Acquired Shares (the “Requisite Shareholding”) in one or a series of related transactions within a three-month period (the “Transfer Period”), provided that Investor shall provide the Company with written notice at least five (5) days prior to the commencement of the Transfer Period setting forth the identity of the First Transferee and the proposed date of first transfer of Securities to the First Transferee; and the consent rights in respect of the Qualified Consent Matters shall survive in respect of the First Transferee so long as the First Transferee legally and beneficially owns, in the aggregate, a minimum number of Ordinary Shares (on an as-converted basis) greater than the Requisite Shareholding and all references to “Investor” under the Qualified Consent Matters shall refer to the First Transferee; (B) in the event that at any time within the Transfer Period, Investor, the First Transferee and their respective Affiliates do not legally and beneficially own, in the aggregate, Ordinary Shares (on an as-converted basis) equal to or greater than the Requisite Shareholding, the consent rights in respect of the Qualified Consent Matters shall immediately expire; and (C) subject to the foregoing sub-clause (B), at any time during the Transfer Period but prior to the consummation by Investor of any transfer of Securities that results in Investor or the First Transferee legally and beneficially owning, in the aggregate, Ordinary Shares (on an as-converted basis) equal to or greater than the Requisite Shareholding, the consent rights in respect of the Qualified Consent Matters shall be exercised solely by Investor. (c) Investor’s right of consent in respect of each of the Consent Matters (other than in respect of the Qualified Consent Matters) shall terminate upon the earliest of (i) the consummation of a Qualified IPO, (ii) the consummation of a Qualified Transfer and (iii) April 29, 2018 in the event Investor has not effected a Qualified Option Exercise on or prior to April 29, 2018.
Appears in 5 contracts
Sources: Shareholder Agreement, Shareholder Agreement (Sina Corp), Shareholder Agreement (WEIBO Corp)
Approval Required. WP and/or the WP Members (aas hereinafter defined) The Board shall have authority with respect to all aspects of the operation of Steering Committee may not give its/their approval under the Company, provided, however, that except as set forth in Schedule 3, none of Parent, the Company or any of the Company’s Subsidiaries shall take any action Network Agreement with respect to the following matters relating elements of the design, installation, testing, acceptance and operation of the System without receipt of written approval from the City:
a) Payments required from EarthLink described in Section 1 of the Network Agreement;
b) The Design Control Documents described in Section 3.1(b) of the Network Agreement;
c) The Proof of Concept Acceptance described in Section 3.2(c) of the Network Agreement;
d) The Implementation Conditions described in Section 3.4 of the Network Agreement;
e) Zone Acceptance described in Section 3.4(b) of the Network Agreement;
f) System Acceptance described in Section 3.4(e) of the Network Agreement;
g) Waiver of conditions permitted under Section 4 of the Network Agreement;
h) Termination of the Network Agreement pursuant to Sections 4.4, 4.5 and 16.3 of the Network Agreement;
i) Renewal or extension of the Network Agreement pursuant to Section 16.2 of the Network Agreement;
j) Amendment or assignment of the Network Agreement pursuant to the Company or any Network Agreement; and
k) Declaration of a Termination Default pursuant to the Network Agreement. Notwithstanding anything to the contrary contained in this Management Agreement, in the event that WP and/or the WP Members of the Company’s Subsidiaries Steering Committee request an approval of the City required under this Management Agreement (collectivelyincluding without limitation pursuant to this Section 3.1), the “Consent Matters”), except with the prior written consent City shall respond within thirty days after receipt of Investor:
such request (i) or if a dissolution, liquidation or winding-up;
(ii) any disposition (including the amendment or termination of any organization documents of, or contractual arrangements with, a VIE shorter period to respond is required by an applicable provision of the Company Network Agreement and such request by WP expressly discloses such shorter response period and such notice is promptly provided, then within such shorter period) either affirmatively, negatively or by certifying that prevents additional time is needed, in which case the consolidation City shall have an additional thirty days (or such shorter period as may be provided by an applicable provision of such VIE with the CompanyNetwork Agreement) that exceeds $30 million in any single transaction or series of related transactions or $100 million to respond, and in the aggregate over any 12-month period (in each case, whether such amounts are the consideration received or the fair value of assets disposed or a VIE no longer consolidated with the Company);
(iii) any Material Related Party Transaction;
(iv) any declaration, making or payment of any dividend or distribution (whether in cash, securities or other property) or other than pursuant to an equity-based incentive plan approved by the Relevant Board (including the Option Plan) and in accordance with Section 2.03(a)(vii), any buy-back of securities or reduction of share capital, other than the Redemption (as defined in the Share Purchase Agreement) and the Post-Closing Redemption;
(v) any amendment to the Articles of Association or the constitutional documents absence of any of the Company’s Subsidiaries that disproportionately foregoing, the City shall be deemed to have granted its approval and adversely affect in any material respect WP and/or the rights of Investor as a shareholder WP Members of the Company; provided that Steering Committee shall be permitted in such instance to make such decision or grant such approval or consent under the Network Agreement. In addition to submitting any amendments requests for approval under this Section to the terms of the Preferred Shares Managing Director, WP shall be subject to a class vote of the holders of Preferred Shares in accordance with applicable Law and the Articles of Association;
(vi) any issuance of Securities, other than (A) at any time following April 29, 2014, issuances (whether in any one transaction or together with all other transactions) of Securities that represent, in the aggregate, no more than 15% of Fully-Diluted Equity; (B) on or prior to April 29, 2014, issuances (whether in any one transaction or together with all other transactions) of Securities that represent, in the aggregate, no more than 15% of Fully-Diluted Equity, provided that each such issuance is consummated at a price per Ordinary Share (on an as-converted basis) that is no lower than the highest price per Ordinary Share (on an as-converted basis) paid by Investor for the Acquired Shares (as adjusted for share splits, share dividends, combinations, reclassifications, recapitalizations and the like) and the terms of each such issuance are not more favorable in any material respect to the purchaser(s) or subscriber(s) of such Securities than the terms of Investor’s purchase of the Acquired Shares; (C) issuances of Securities pursuant to an equity-based incentive plan approved by the Relevant Board, including the Option Plan; (D) issuances of Securities on a pro rata basis in connection with any share splits, share dividends, combinations, reclassifications, recapitalizations, rights issuances and the like; (E) issuances of Securities to be offered in a Qualified IPO; (F) issuances of Securities upon the conversion or exchange of convertible or exchangeable Securities issued in accordance with this Agreement, pursuant to the terms of such Securities; or (G) Securities issued upon the conversion submit copies of any Preferred Shares;
(vii) any establishment of, or amendment to, any equity-based incentive plan that would result (whether in any one transaction or together with all other transactions) in the Securities issuable upon the exercise, conversion or exchange of the options and other equity awards authorized request for approvals under all equity-based incentive plans of the Company (including the Option Plan and other existing equity-based incentive plans of the Company), in the aggregate, exceeding 43,750,000 Ordinary Shares (as adjusted for share splits, share dividends, combinations, reclassifications, recapitalizations and the like);
(viii) any creation of any mortgages, charges, pledges, security interests, liens or other encumbrances in respect of any Indebtedness in excess of $100 million in the aggregate over any 12-month period;
(ix) any incurrence of Indebtedness in excess of $100 million in the aggregate over any 12-month period; or
(x) any entry into, or termination or amendment of any non-ordinary course exclusive license or other contract that primarily relates to, or whose principal value is derived from, an exclusive license, or any sale or other transfer to a third party of any material Intellectual Property owned by the Company or any of its Subsidiaries. provided, that in no event shall any of the foregoing be construed as requiring Parent, the Company or any of the Company’s Subsidiaries to obtain the consent of Investor with respect to actions reasonably necessary to effect a Qualified IPO.
(b) The Consent Matters set forth in subsections (iSection 3.1(b), (ivd), (v), (viii) and (ix) above shall be referred to as the “Qualified Consent Matters”. Investor’s right of consent in respect of each of the Qualified Consent Matters shall terminate upon the earlier of (i) the consummation of a Qualified IPO and or (ii) the consummation of a Qualified Transfer; provided, however, that in the case of a Qualified Transfer, (A) the consent rights in respect of the Qualified Consent Matters shall survive in respect of any Person (including any Third Partyj) to whom Investor directly effects a transfer (the “First Transferee”), in accordance with the provisions Chief Clerk of Article IV, of a number of Ordinary Shares (on an as-converted basis) greater than 75% of the Acquired Shares (the “Requisite Shareholding”) in one or a series of related transactions City Council within a three-month period (the “Transfer Period”), provided that Investor shall provide the Company with written notice at least five (5) three days prior to the commencement of the Transfer Period setting forth the identity of the First Transferee and the proposed date of first transfer of Securities to the First Transferee; and the consent rights in respect of the Qualified Consent Matters shall survive in respect of the First Transferee so long as the First Transferee legally and beneficially owns, in the aggregate, a minimum number of Ordinary Shares (on an as-converted basis) greater than the Requisite Shareholding and all references to “Investor” under the Qualified Consent Matters shall refer to the First Transferee; (B) in the event that at any time within the Transfer Period, Investor, the First Transferee and their respective Affiliates do not legally and beneficially own, in the aggregate, Ordinary Shares (on an as-converted basis) equal to or greater than the Requisite Shareholding, the consent rights in respect of the Qualified Consent Matters shall immediately expire; and (C) subject to the foregoing sub-clause (B), at any time during the Transfer Period but prior to the consummation by Investor of any transfer of Securities that results in Investor or the First Transferee legally and beneficially owning, in the aggregate, Ordinary Shares (on an as-converted basis) equal to or greater than the Requisite Shareholding, the consent rights in respect of the Qualified Consent Matters shall be exercised solely by Investorthereafter.
(c) Investor’s right of consent in respect of each of the Consent Matters (other than in respect of the Qualified Consent Matters) shall terminate upon the earliest of (i) the consummation of a Qualified IPO, (ii) the consummation of a Qualified Transfer and (iii) April 29, 2018 in the event Investor has not effected a Qualified Option Exercise on or prior to April 29, 2018.
Appears in 2 contracts
Sources: Management and Services Agreement, Management and Services Agreement
Approval Required. (a) The Board In general, a Majority Vote shall have authority with respect to all aspects constitute an act of the operation of Board. Notwithstanding the Companyforegoing, providedbut subject to Section 3.08, however, that except as set forth in Schedule 3, none of Parent, neither the Company or nor any Material Subsidiary shall take any of the Company’s Subsidiaries shall take any action with respect to following actions without the following matters relating to the Company or any approval of the Company’s Subsidiaries (collectively, the “Consent Matters”), except with the prior written consent each of InvestorKingsland and Synergy:
(i) a dissolutionmaterially modify, liquidation waive or winding-uprepeal any material provision contained in its Charter Documents, unless required to comply with applicable law;
(ii) merge or consolidate the Company or any disposition (including the amendment Material Subsidiary with, or termination of any organization documents sell, transfer or otherwise dispose of, all or contractual arrangements with, a VIE substantially all of the assets of the Company that prevents or any Material Subsidiary, to any Third Party;
(iii) issue or Sell any voting Capital Stock of or other voting equity interest (or other security exercisable for or convertible into any voting Capital Stock or other voting equity interest) in the consolidation Company or any Subsidiary;
(iv) except as contemplated by the Business Plan and Budget, make any acquisition of such VIE with assets or securities or an equity investment in a joint venture or partnership (x) related to the Companyairline business or activities ancillary or related thereto in each case in an amount greater than (1) that exceeds $30 US$30.0 million in any single transaction instance or series of related transactions or $100 (2) US$75.0 million in the aggregate over during any 12-month period fiscal year, or (y) not related to the airline business or activities ancillary or related thereto;
(v) except as contemplated by the Business Plan and Budget, make capital expenditures in each caseexcess of US$120.0 million in the aggregate during any fiscal year;
(vi) authorize, adopt, amend or modify the Business Plan and Budget;
(vii) enter into a Contract with a Stockholder, Director or an officer of the Company or a Family Member or Affiliate of any of the foregoing, whether such amounts are for the consideration received performance of services or purchase of goods or property or the fair value leasing of assets disposed same or otherwise; and
(viii) issue a loan to a Stockholder, Director or an officer of the Company or a VIE no longer consolidated with Family Member or Affiliate of any of the foregoing.
(b) Subject to Section 3.08, neither the Company nor any Material Subsidiary shall take any of the following actions without both a Majority Vote and the approval of a majority of the Independent Directors:
(i) acquire, repurchase or redeem any Capital Stock or other equity interest (or other security exercisable for or convertible into any Capital Stock or other equity interest) in the Company or any Subsidiary or (ii) issue or Sell any non-voting Capital Stock of or other non-voting equity interest (or other security exercisable for or convertible into any non-voting Capital Stock or other non-voting equity interest) in the Company or any Subsidiary;
(ii) unless required by law or a change in IFRS make any material change in accounting methods (other than (x) a change permitted by IFRS and recommended in writing by the Company’s external auditors or (y) a change recommended by management and unanimously approved by the Audit Committee of the Board);
(iii) commence any Material Related Party Transactionbankruptcy or insolvency proceeding;
(iv) any declarationdissolve or liquidate, making or payment of any dividend agree to dissolve or distribution (whether in cash, securities or other property) or other than pursuant to an equity-based incentive plan approved by the Relevant Board (including the Option Plan) and in accordance with Section 2.03(a)(vii), any buy-back of securities or reduction of share capital, other than the Redemption (as defined in the Share Purchase Agreement) and the Post-Closing Redemptionliquidate;
(v) any amendment execute a settlement agreement or confess a judgment, the result of which would be to cause the Articles of Association or the constitutional documents of any of the Company’s Subsidiaries that disproportionately and adversely affect in any material respect the rights of Investor as a shareholder of the Company; provided that any amendments Company to the terms of the Preferred Shares shall be subject pay over US$5.0 million to a class vote of the holders of Preferred Shares in accordance with applicable Law and the Articles of AssociationThird Party;
(vi) commence any issuance litigation for an amount in excess of Securities, other than (A) at any time following April 29, 2014, issuances (whether in any one transaction or together with all other transactions) of Securities that represent, in the aggregate, no more than 15% of Fully-Diluted Equity; (B) on or prior to April 29, 2014, issuances (whether in any one transaction or together with all other transactions) of Securities that represent, in the aggregate, no more than 15% of Fully-Diluted Equity, provided that each such issuance is consummated at a price per Ordinary Share (on an as-converted basis) that is no lower than the highest price per Ordinary Share (on an as-converted basis) paid by Investor for the Acquired Shares (as adjusted for share splits, share dividends, combinations, reclassifications, recapitalizations and the like) and the terms of each such issuance are not more favorable in any material respect to the purchaser(s) or subscriber(s) of such Securities than the terms of Investor’s purchase of the Acquired Shares; (C) issuances of Securities pursuant to an equity-based incentive plan approved by the Relevant Board, including the Option Plan; (D) issuances of Securities on a pro rata basis in connection with any share splits, share dividends, combinations, reclassifications, recapitalizations, rights issuances and the like; (E) issuances of Securities to be offered in a Qualified IPO; (F) issuances of Securities upon the conversion or exchange of convertible or exchangeable Securities issued in accordance with this Agreement, pursuant to the terms of such Securities; or (G) Securities issued upon the conversion of any Preferred SharesUS$5.0 million;
(vii) any establishment ofexcept as contemplated by the Business Plan and Budget, or amendment to, any equity-based incentive plan that would result incur indebtedness for borrowed money (whether in any one transaction or together with all other transactions) than working capital debt incurred in the Securities issuable upon the exerciseordinary course of business), conversion or exchange involving an aggregate annual amount greater than ten percent (10%) of the options and other equity awards authorized under all equity-based incentive plans of amount budgeted therefor in the Company (including the Option Business Plan and other existing equity-based incentive plans of the Company), in the aggregate, exceeding 43,750,000 Ordinary Shares (as adjusted for share splits, share dividends, combinations, reclassifications, recapitalizations and the like)Budget;
(viii) adopt or amend any creation of any mortgages, charges, pledges, security interests, liens stock option plan or other encumbrances in respect equity incentive plan, or implement any methodology or structure (including compensation ranges) for determining the compensation of any Indebtedness in excess the Senior Management and the vice presidents of $100 million in the aggregate over any 12-month periodCompany;
(ix) any incurrence of Indebtedness in excess of $100 million in the aggregate over any 12-month period; orselect or replace its independent auditors;
(x) except as contemplated by the Business Plan and Budget, enter into any entry into, or termination or amendment material Contract outside the ordinary course of business (including the giving of any nonguaranty or indemnity) or of any long-ordinary course exclusive license term nature, in each case involving an aggregate annual payment greater than 0.3% of consolidated gross revenues of the Company for the most recent four consecutive fiscal quarters;
(xi) modify the Dividend Policy;
(xii) increase or decrease the size of the Board (other contract that primarily relates to, than an increase approved by a majority of the Independent Directors pursuant to Section 3.03(c));
(xiii) change the jurisdiction of organization of the Company; and
(xiv) terminate or whose principal value is derived from, an exclusive relinquish any material governmental license, permit or any sale concession obtained or other transfer to a third party of any material Intellectual Property owned held by the Company or any of its Material Subsidiaries. provided, that in no event shall any of the foregoing be construed as requiring Parent, the Company or any of the Company’s Subsidiaries to obtain the consent of Investor with respect to actions reasonably necessary to effect a Qualified IPO.
(b) The Consent Matters set forth in subsections (i), (iv), (v), (viii) and (ix) above shall be referred to as the “Qualified Consent Matters”. Investor’s right of consent in respect of each of the Qualified Consent Matters shall terminate upon the earlier of (i) the consummation of a Qualified IPO and (ii) the consummation of a Qualified Transfer; provided, however, that in the case of a Qualified Transfer, (A) the consent rights in respect of the Qualified Consent Matters shall survive in respect of any Person (including any Third Party) to whom Investor directly effects a transfer (the “First Transferee”), in accordance with the provisions of Article IV, of a number of Ordinary Shares (on an as-converted basis) greater than 75% of the Acquired Shares (the “Requisite Shareholding”) in one or a series of related transactions within a three-month period (the “Transfer Period”), provided that Investor shall provide the Company with written notice at least five (5) days prior to the commencement of the Transfer Period setting forth the identity of the First Transferee and the proposed date of first transfer of Securities to the First Transferee; and the consent rights in respect of the Qualified Consent Matters shall survive in respect of the First Transferee so long as the First Transferee legally and beneficially owns, in the aggregate, a minimum number of Ordinary Shares (on an as-converted basis) greater than the Requisite Shareholding and all references to “Investor” under the Qualified Consent Matters shall refer to the First Transferee; (B) in the event that at any time within the Transfer Period, Investor, the First Transferee and their respective Affiliates do not legally and beneficially own, in the aggregate, Ordinary Shares (on an as-converted basis) equal to or greater than the Requisite Shareholding, the consent rights in respect of the Qualified Consent Matters shall immediately expire; and (C) subject to the foregoing sub-clause (B), at any time during the Transfer Period but prior to the consummation by Investor of any transfer of Securities that results in Investor or the First Transferee legally and beneficially owning, in the aggregate, Ordinary Shares (on an as-converted basis) equal to or greater than the Requisite Shareholding, the consent rights in respect of the Qualified Consent Matters shall be exercised solely by Investor.
(c) InvestorPrior to the Board’s right considering or acting upon any Special Approval Matter at any Board meeting, and/or prior to the Company or the Board submitting any Special Approval Matter to a vote of consent in respect of the Company’s stockholders, as applicable, the Company shall send to each of Kingsland and Synergy a written notice requesting that each of them approve a Special Approval Matter (an “Approval Request”) (A) with respect to any Board meeting at which a Special Approval Matter is to be considered, at least fifteen (15) days before the Consent Matters date such Board meeting is scheduled to occur, or (other than B) with respect to any stockholders meeting at which a Special Approval Matter is to be considered, at least fifteen (15) days before the earlier of the date of such stockholders meeting and the date on which the notice of such stockholders meeting is sent to the Company’s stockholders. Any Approval Request shall be accompanied by any materials that will be presented to the Board or stockholders in respect of the Qualified Consent Matterssubject Special Approval Matter(s). Subject to Section 3.08, unless Kingsland or Synergy, as applicable, delivers to the Company and each other Stockholder within fifteen (15) days following receipt of an Approval Request and prior to the applicable Board meeting or stockholders meeting, as the case may be, a written notice that Kingsland or Synergy, as applicable, disapproves a Special Approval Matter that is the subject of such Approval Request (a “Disapproval Notice;” and the date on which Kingsland delivers a Disapproval Notice to both the Company and Synergy is referred to herein as the “Delivery Date”), Kingsland or Synergy, as applicable, shall terminate upon the earliest be deemed to have approved of such Special Approval Matter (i) the consummation of a Qualified IPO, (ii) the consummation of a Qualified Transfer and (iii) April 29, 2018 as described in the event Investor has not effected a Qualified Option Exercise on or prior particular Approval Request), provided that such Special Approval Matter is submitted to April 29the Board and/or, 2018if required, the Company’s stockholders, for their consideration and approval, and is approved by the Board and/or the Company’s stockholders, as applicable.
Appears in 1 contract
Approval Required. (a) The Board shall have authority with respect In addition to all aspects of the operation of the Companyany other approval required under applicable law or otherwise, provided, however, that except as set forth in Schedule 3, none of Parent, the Company or any of the Company’s Subsidiaries shall take any action with respect to the following matters relating to the Company or any of the Company’s Subsidiaries (collectively, the “Consent Matters”), except with each a "FUNDAMENTAL DECISION") shall require the prior written consent approval of Investor:
(i) a dissolutionboth Shareholders, liquidation or winding-up;
(ii) any disposition (including the amendment or termination of any organization documents of, or contractual arrangements with, a VIE of the Company that prevents the consolidation of such VIE with the Company) that exceeds $30 million in any single transaction or series of related transactions or $100 million in the aggregate over any 12-month period (in each case, whether such amounts are the consideration received or the fair value of assets disposed or a VIE no longer consolidated with the Company);
(iii) any Material Related Party Transaction;
(iv) any declaration, making or payment of any dividend or distribution (whether in cash, securities or other property) or other than pursuant to an equity-based incentive plan approved by the Relevant Board (including the Option Plan) and in accordance with Section 2.03(a)(vii), any buy-back of securities or reduction of share capital, other than the Redemption (as defined in the Share Purchase Agreement) and the Post-Closing Redemption;
(v) any amendment to the Articles of Association or the constitutional documents of any of the Company’s Subsidiaries that disproportionately and adversely affect in any material respect the rights of Investor as a shareholder of the Company; provided that any amendments to the terms of the Preferred Shares shall not be subject to a class vote of the holders of Preferred Shares in accordance with applicable Law and the Articles of Association;
(vi) any issuance of Securities, other than (A) at any time following April 29, 2014, issuances (whether in any one transaction or together with all other transactions) of Securities that represent, in the aggregate, no more than 15% of Fully-Diluted Equity; (B) on or prior to April 29, 2014, issuances (whether in any one transaction or together with all other transactions) of Securities that represent, in the aggregate, no more than 15% of Fully-Diluted Equity, provided that each such issuance is consummated at a price per Ordinary Share (on an as-converted basis) that is no lower than the highest price per Ordinary Share (on an as-converted basis) paid by Investor for the Acquired Shares (as adjusted for share splits, share dividends, combinations, reclassifications, recapitalizations and the like) and the terms of each such issuance are not more favorable in any material respect to the purchaser(s) or subscriber(s) of such Securities than the terms of Investor’s purchase of the Acquired Shares; (C) issuances of Securities pursuant to an equity-based incentive plan approved by the Relevant Board, including the Option Plan; (D) issuances of Securities on a pro rata basis in connection with any share splits, share dividends, combinations, reclassifications, recapitalizations, rights issuances and the like; (E) issuances of Securities to be offered in a Qualified IPO; (F) issuances of Securities upon the conversion or exchange of convertible or exchangeable Securities issued in accordance with this Agreement, pursuant to the terms of such Securities; or (G) Securities issued upon the conversion of any Preferred Shares;
(vii) any establishment of, or amendment to, any equity-based incentive plan that would result (whether in any one transaction or together with all other transactions) in the Securities issuable upon the exercise, conversion or exchange of the options and other equity awards authorized under all equity-based incentive plans of the Company (including the Option Plan and other existing equity-based incentive plans of the Company), in the aggregate, exceeding 43,750,000 Ordinary Shares (as adjusted for share splits, share dividends, combinations, reclassifications, recapitalizations and the like);
(viii) any creation of any mortgages, charges, pledges, security interests, liens or other encumbrances in respect of any Indebtedness in excess of $100 million in the aggregate over any 12-month period;
(ix) any incurrence of Indebtedness in excess of $100 million in the aggregate over any 12-month period; or
(x) any entry into, or termination or amendment of any non-ordinary course exclusive license or other contract that primarily relates to, or whose principal value is derived from, an exclusive license, or any sale or other transfer to a third party of any material Intellectual Property owned carried out by the Company or any of its Subsidiaries. provided, that in no event shall Subsidiaries unless such prior approval has been given:
(i) the approval of any business plan or budget of the foregoing Company, other than the Initial Business Plan (which has been approved by Royal Caribbean and P&O Princess on or prior to the date hereof);
(ii) the amendment of any business plan or budget (including the Initial Business Plan) or, except as otherwise contemplated by Sections 3.03(g) and (h), any Ship-Build Contract;
(iii) the appointment or removal of any principal officer of the Company;
(iv) the commitment to make any capital expenditure with respect to any transaction or series of related transactions if the payment or payments made or to be construed made in respect thereof would exceed $1,000,000 (other than with respect to a Ship-Build Contract or a Contributed Vessel that has been assigned or transferred to the Company in accordance with the terms of this Agreement, except as requiring Parentotherwise contemplated by Sections 3.03(g) and (h));
(v) any agreements providing for payments individually or in the aggregate in excess of $500,000 or not in the ordinary course of business (other than with respect to a Ship-Build Contract that has been assigned to the Company, or with respect to a Contributed Vessel to be transferred to the Company, in each case, in accordance with the terms of this Agreement, except as otherwise contemplated by Sections 3.03(g) and (h));
(vi) the issuance, or repurchase, reduction or redemption, by the Company of any debt or equity security (or option, warrant, convertible or other similar right with respect to any debt or equity security);
(vii) the undertaking by the Company of any business other than the Joint Venture Business;
(viii) the creation or designation of any committee of the Board and such committee's composition and powers;
(ix) any transaction (other than in accordance with the terms of an existing, previously approved agreement, including this Agreement) or agreement by the Company or any of its Subsidiaries with any Shareholder, any of such Shareholder's Affiliates, or any director or employee or such Persons (including, without limitation, the Company’s Subsidiaries to obtain Ancillary Services Agreements and the consent of Investor Management Services Agreements) and any action by the Company with respect to actions reasonably necessary to effect a Qualified IPO.the Company's rights and obligations under any such agreement;
(bx) The Consent Matters set forth in subsections (i), (iv), (v), (viii) and (ix) above shall be referred to as the “Qualified Consent Matters”. Investor’s right of consent in respect of each of the Qualified Consent Matters shall terminate upon the earlier of (i) the consummation of a Qualified IPO and (ii) the consummation of a Qualified Transfer; provided, however, that in the case of a Qualified Transfer, (A) the consent rights in respect of the Qualified Consent Matters shall survive any dividend or other distribution in respect of any Person shares of capital stock;
(including xi) (y) any Third Partymerger or consolidation of the Company or any of its material Subsidiaries (other than mergers or consolidations among the Company and its wholly-owned Subsidiaries, or among the Company's wholly-owned Subsidiaries alone) to whom Investor directly effects a transfer or (z) any acquisition or disposition of capital stock or assets by the “First Transferee”)Company, in accordance with the provisions of Article IV, of a number of Ordinary Shares (on an as-converted basis) greater than 75% of the Acquired Shares (the “Requisite Shareholding”) in one transaction or a series of related transactions within transactions, in excess of $1,000,000 (other than the acquisition of a threevessel under any Ship-month period Build Contract or the acquisition of a Royal Caribbean Contributed Vessel or a P&O Princess Contributed Vessel in accordance with the terms of this Agreement);
(xii) any sale of (or grant of charge or option over) all or substantially all of the “Transfer Period”), provided that Investor shall provide assets of the Company;
(xiii) any amendment of the Company Articles;
(xiv) the discontinuance, winding up, dissolution or liquidation of the Company or any of its Subsidiaries, or the voluntary commencement of any proceeding seeking reorganization or relief with written notice at least five (5) days prior respect to the commencement Company or any of its Subsidiaries under bankruptcy or similar laws;
(xv) (A) the Transfer Period setting forth entering into of any agreement, commitment or other instrument providing for, with respect to or evidencing the identity incurrence of any indebtedness for borrowed money (a "DEBT AGREEMENT") if the First Transferee and the proposed date maximum amount of first transfer of Securities to the First Transferee; and the consent rights indebtedness for borrowed money that could be outstanding or incurred under such Debt Agreement would exceed $1,000,000 in respect of the Qualified Consent Matters shall survive in respect of the First Transferee so long as the First Transferee legally and beneficially ownsprincipal amount, in the aggregate, a minimum number of Ordinary Shares (on an as-converted basis) greater than the Requisite Shareholding and all references to “Investor” under the Qualified Consent Matters shall refer to the First Transferee; or (B) the amendment, extension or renewal of any Debt Agreement the entering into of which required approval under Section 5.02(xv)(A) hereof;
(xvi) the undertaking or settlement of any suit, claim or cause of action;
(xvii) the adoption of or any material change to employment agreements and compensation with respect to officers and other employees of the Company or any of its Subsidiaries;
(xviii) the adoption or amendment of any plan or arrangement providing for pension or other benefits for employees of the Company or any of its Subsidiaries;
(xix) the grant of any material lien, mortgage, pledge, hypothecation, assignment, encumbrance or other security interest with respect to any assets of the Company or any of its Subsidiaries;
(xx) any guaranties of the obligations of any third party;
(xxi) the appointment and removal of auditors;
(xxii) the adoption or modification of any material tax or accounting practices and policies (unless required by applicable law or under applicable generally accepted accounting principles);
(A) lending money, extending credit or making advances to any person (except in the event that at any time within the Transfer Periodordinary course of business not in excess of $1,000,000), Investor, the First Transferee and their respective Affiliates do not legally and beneficially own, in the aggregate, Ordinary Shares (on an as-converted basis) equal to or greater than the Requisite Shareholding, the consent rights in respect of the Qualified Consent Matters shall immediately expire; and (C) subject to the foregoing sub-clause (B)) purchasing or acquiring any stock, at obligation or securities of, or any time during the Transfer Period but prior to the consummation by Investor of other interest in, or making any transfer of Securities that results in Investor or the First Transferee legally and beneficially owningcapital contribution to, in the aggregate, Ordinary Shares (on an as-converted basis) equal to or greater than the Requisite Shareholding, the consent rights in respect of the Qualified Consent Matters shall be exercised solely by Investor.
(c) Investor’s right of consent in respect of each of the Consent Matters any other person (other than a Subsidiary);
(xxiv) the incurrence of any indebtedness for borrowed money by the Company in connection with any Shareholder Debt Financing, and the provision of such Shareholder Debt Financing by the Shareholders;
(xxv) any call by the Company for payment by a Shareholder of any amounts outstanding with respect to the Shares, other than a call for payment expressly provided for in this Agreement;
(xxvi) the determination of the Qualified Consent Matters) date on which a Shareholder shall terminate upon assign or transfer to the earliest of Company, or cause the assignment or transfer to the Company of, as the case may be, a Ship-Build Contract or a Contributed Vessel pursuant to Section 3.03;
(ixxvii) the consummation determination of the date on which a Qualified IPOContributed Vessel that has been chartered to a Shareholder by the Company shall be delivered to the Company pursuant to Section 3.03(d);
(xxviii) any nomination, appointment or removal of the Non-Shareholder Director; and
(iixxix) any of the consummation above actions to be taken by any of a Qualified Transfer and (iii) April 29, 2018 in the event Investor has not effected a Qualified Option Exercise on or prior Company's Subsidiaries from time to April 29, 2018time.
Appears in 1 contract
Sources: Joint Venture Agreement (Royal Caribbean Cruises LTD)