Common use of Board Reserved Matters Clause in Contracts

Board Reserved Matters. The Company and the Key Group Companies shall not, and the Company, the Key Group Companies and the Founder Parties shall procure each Group Company not to, take, permit to occur, approve, authorize, or agree or commit to do any action (including any action by the Board or any committee thereof) with respect to any of the following matters, whether in a single transaction or a series of related transactions, directly or indirectly, whether by amendment, merger, amalgamation, consolidation or otherwise, without the affirmative vote at a duly convened meeting of the Board by, or written consent by, (a) at least half of the Investor Directors then in office and (b) at least half of the Founder Directors then in office; provided, that any transaction for the purposes of the Restructuring that is expressly contemplated in the Restructuring Memorandum or the Restructuring Framework Agreement shall not require such affirmative vote or consent in accordance with this Section 2.10: (i) any change of auditors of any Group Company; (ii) any change of accounting policies applicable to any Group Company, except for any change mandated by official changes in accounting rules or application guidance that is mandated by Applicable Laws to be adopted, or any change required by the applicable stock exchange in connection with a Qualified IPO; (iii) any acquisition, investment, or a series of related acquisitions or investments, the consideration of which exceeds the greater of (A) RMB500,000,000 and (B) fifty percent (50%) of the operating net cash flow of the Company for the prior fiscal year; (iv) except as otherwise provided in Section 2.10(iii), any capital commitment or expenditure in a single transaction or transactions within any consecutive twelve (12) months in the aggregate, the consideration of which exceeds the lower of (A) RMB500,000,000 and (B) five percent (5%) of the net assets of the Company for the prior fiscal year; (v) except as otherwise provided in this Agreement, any Transfer, disposal of, or creation of any encumbrance on, any Equity Securities of any Group Company (other than the Company) or any asset of any Group Company, in a single transaction or transactions within any consecutive twelve (12) months in the aggregate, involving a value of the lower of (A) RMB1,000,000,000 and (B) five percent (5%) of the net assets of the Company for the prior fiscal year; (vi) creation, incurrence or authorization of the creation of any debt on behalf of any Group Company, in a single transaction or transactions within any consecutive twelve (12) months in the aggregate, with a principal amount in excess of the lower of (A) RMB500,000,000 and (B) five percent (5%) of the net assets of the Company for the prior fiscal year; (vii) any guarantee provided to any Person other than a wholly owned Group Company, except (A) any guarantee provided for the benefit of any Ziroom Group Company or any Asset Management Group Company, in the ordinary course of business of the Ziroom Group or the Asset Management Group (as applicable); provided that the aggregate guaranteed amount to all Ziroom Group Companies and Asset Management Group Companies at any given time shall not exceed thirty percent (30%) of the net assets of the Group for the prior fiscal year, and (B) any guarantee provided solely for the conduct of the Finance Business in the ordinary course of business and on arm’s length terms; (viii) any amendment to or termination of or waiver under any of the Control Documents or any provisions thereunder; (ix) the establishment of any joint venture, partnership or non-wholly owned Subsidiary excluding any establishment of a new joint venture in the ordinary course of business and on arm’s length terms with any bona fide third party, but not excluding any conversion of a wholly owned Group Company into any joint venture; (x) any disposal of (including any sale, assignment or transfer of, or grant of any exclusive license under, exclusive option, right of first refusal, or right of first offer to acquire or license, or any other prohibition on any Group Company from using or permitting third parties to use ) any Intellectual Property owned by any Group Company that is material to the Group, other than intra-group transfers to any wholly owned Subsidiaries of the Company; or (xi) enter into any Related Party Transaction, other than (A) intra-group Contracts or transactions with or among wholly owned Subsidiaries of the Company, or with or among non-wholly owned Subsidiaries that is in the ordinary course of business and on arm’s length terms, (B) any Related Party Transaction or a series of Related Party Transactions in the ordinary course of business and on arm’s length terms with a value not exceeding US$1,500,000 within the same fiscal year in the aggregate, (C) any Contract or transaction in connection with the establishment or implementation of trusts in relation to any duly approved ESOP or any grant thereunder or exercise thereof, or any loans provided to the officers in connection with any grant under or exercise of ESOP in accordance with the terms of a duly approved ESOP plan, (D) Contracts or transactions contemplated under the Business Cooperation Agreement, (E) any Contract or transaction with any Ziroom Group Company or any Asset Management Group Company in the ordinary course of business, on arm’s length terms and priced at fair market value, (F) any guarantee as described in, and subject to the limitations contained in, Section 2.10(vii)(A), and (G) any Contract or transaction between any Group Company on the one hand and a Preferred Holder or its Affiliate(s) that is a real estate developer on the other hand pursuant to which the Group Company provides firsthand real estate sales or brokerage services to that real estate developer, if that Contract or transaction is in the ordinary course of business, on arm’s length terms and priced at fair market value.

Board Reserved Matters. The Company (a) Subject to Section 5.5(b), Section 5.8 and any additional requirements imposed by the Key Group Companies shall not, and the CompanyAct, the Key Group Companies Company shall not and the Founder Parties shall procure each other Group Company not to, and no Shareholders shall cause any Group Company to, take, permit to occur, approve, authorize, or agree or commit to do any action (including any action by the Board or any committee thereof) with respect to any of the following mattersactions, whether in a single transaction or a series of related transactions, whether directly or indirectly, indirectly and whether or not by amendment, merger, amalgamationconsolidation, consolidation scheme of arrangement, amalgamation or otherwise, without the affirmative vote at consent of a duly convened meeting majority of the Board by, or written consent by, (a) at least half of the Investor Directors then in office and (b) at least half of the Founder Directors then in office; provided, that any transaction for in respect of Section 5.5(a)(i), Section 5.5(a)(ii), Section 5.5(a)(iii), Section 5.5(a)(vi), Section 5.5(a)(vii), Section 5.5(a)(viii), Section 5.5(a)(xi) and Section 5.5(a)(xii), the purposes affirmative consent of at least one Baidu Director shall also be required; provided, further, that in respect of Section 5.5(a)(xii), the affirmative consent of the Restructuring that is expressly contemplated in Strategic Investor Director shall also be required: (i) the approval or amendment of, or any deviation from, any Budget or Business Plan; (ii) the entry into any contract or commitment by any Group Company with any Related Party (other than the Side Agreement to the Business Cooperation Agreement), or the termination or material amendment of or waiver under any such contract or commitment, including the Restructuring Memorandum Documents, the Framework Business Cooperation Agreement and the Transition Services Agreement; (iii) any purchase or other acquisition by any Group Company of another Person or the Restructuring Framework Agreement shall not require business and/or assets of another Person, or the investment by any Group Company in any Person, exceeding the total amount intended for such affirmative vote purchase, acquisition or consent investment as set out in any Budget or Business Plan approved in accordance with this Section 2.105.5 and Section 5.8; (iv) the declaration or payment of any dividend or other distribution; (v) any loan or advancement to any Related Party of any Group Company by any Group Company; (vi) the incurrence of any indebtedness or assumption of any financial obligation, or any issue, assumption, guarantee or creation of any indebtedness in the nature of borrowings, by any Group Company in excess of US$1,000,000 in a single transaction or US$5,000,000 in the aggregate; (vii) any sale, transfer or other disposal of, or the incurrence of any Encumbrance on, any assets of any Group Company valued in excess of US$1,000,000 in a single transaction or US$5,000,000 in the aggregate; (viii) subject to 5.10, the appointment, replacement or termination of, or the approval or amendment of any employment terms of, Chief Executive Officer, or any officer, employee or individual who reports directly to Chief Executive Officer (other than his personal assistant) and the business unit heads of the Group Company’s Wealth Management Business, third party payment service business and micro-credit business (collectively, the “Senior Management”); (ix) commence, terminate or settle any litigation or arbitration in which the amount in dispute is or could reasonably be expected to exceed US$1,000,000; (x) any change in the equity ownership of the VIE Entity or any termination or modification to or waiver of rights under any of the Control Documents; (xi) the establishment of any committee of the Board and the composition thereof; and (xii) the appointment or replacement of the Senior Management Director; provided, however, any existing Senior Management Director shall recuse him or herself from any casting any vote on any action by the Board to effect the removal of such Senior Management Director. (b) Notwithstanding any provision to the contrary in this Agreement, in addition to the requirements set out in Section 5.5(a), for so long as any TPG Director is appointed to the Board, the affirmative consent of at least one TPG Director shall also be required in respect of any of the following actions: (i) any change material amendment of auditors the Initial Business Plan or the Initial Budget, and any adoption (or amendment) of any other business plan or budget for the Group Companythereafter to the extent such business plan or budget (or amendment) deviates materially from the Initial Business Plan or the Initial Budget (it being agreed, without limitation, that (x) with respect to any business plan, any entry into a new line of business or termination of an existing line of business shall be deemed material, and (y) with respect to any budget, any deviation over 5% of any line item therein compared to the previously effective budget shall be deemed material); (ii) the approval (or amendment) of the compensation and remuneration terms of any change member of accounting policies applicable to any Group Company, except for any change mandated by official changes in accounting rules or application guidance that is mandated by Applicable Laws to be adopted, or any change required by the applicable stock exchange in connection with a Qualified IPO;Senior Management; and (iii) any acquisition, investment, or a series of related acquisitions or investments, the consideration of which exceeds the greater of (A) RMB500,000,000 and (B) fifty percent (50%) of the operating net cash flow of the Company for the prior fiscal year; (iv) except as otherwise provided action described in Section 2.10(iii5.5(a)(ii), any capital commitment or expenditure in a single transaction or transactions within any consecutive twelve (12) months in the aggregateSection 5.5(a)(iii), the consideration of which exceeds the lower of (A) RMB500,000,000 and (B) five percent (5%) of the net assets of the Company for the prior fiscal year; (v) except as otherwise provided in this AgreementSection 5.5(a)(vi), any TransferSection 5.5(a)(vii), disposal of, or creation of any encumbrance on, any Equity Securities of any Group Company (other than the CompanySection 5.5(a)(xi) or any asset of any Group Company, in a single transaction or transactions within any consecutive twelve (12) months in the aggregate, involving a value of the lower of (A) RMB1,000,000,000 and (B) five percent (5%) of the net assets of the Company for the prior fiscal year; (vi) creation, incurrence or authorization of the creation of any debt on behalf of any Group Company, in a single transaction or transactions within any consecutive twelve (12) months in the aggregate, with a principal amount in excess of the lower of (A) RMB500,000,000 and (B) five percent (5%) of the net assets of the Company for the prior fiscal year; (vii) any guarantee provided to any Person other than a wholly owned Group Company, except (A) any guarantee provided for the benefit of any Ziroom Group Company or any Asset Management Group Company, in the ordinary course of business of the Ziroom Group or the Asset Management Group (as applicableSection 5.5(a)(xii); provided that the aggregate guaranteed amount to all Ziroom Group Companies and Asset Management Group Companies at any given time shall not exceed thirty percent (30%) of the net assets of the Group for the prior fiscal year, and (B) any guarantee provided solely for the conduct of the Finance Business in the ordinary course of business and on arm’s length terms; (viii) any amendment to or termination of or waiver under any of the Control Documents or any provisions thereunder; (ix) the establishment of any joint venture, partnership or non-wholly owned Subsidiary excluding any establishment of a new joint venture in the ordinary course of business and on arm’s length terms with any bona fide third party, but not excluding any conversion of a wholly owned Group Company into any joint venture; (x) any disposal of (including any sale, assignment or transfer of, or grant of any exclusive license under, exclusive option, right of first refusal, or right of first offer to acquire or license, or any other prohibition on any Group Company from using or permitting third parties to use ) any Intellectual Property owned by any Group Company that is material to the Group, other than intra-group transfers to any wholly owned Subsidiaries of the Company; or (xi) enter into any Related Party Transaction, other than (A) intra-group Contracts or transactions with or among wholly owned Subsidiaries of the Company, or with or among non-wholly owned Subsidiaries that is in the ordinary course of business and on arm’s length terms, (B) any Related Party Transaction or a series of Related Party Transactions in the ordinary course of business and on arm’s length terms with a value not exceeding US$1,500,000 within the same fiscal year in the aggregate, (C) any Contract or transaction in connection with the establishment or implementation of trusts in relation to any duly approved ESOP or any grant thereunder or exercise thereof, or any loans provided to the officers in connection with any grant under or exercise of ESOP in accordance with the terms of a duly approved ESOP plan, (D) Contracts or transactions contemplated under the Business Cooperation Agreement, (E) any Contract or transaction with any Ziroom Group Company or any Asset Management Group Company in the ordinary course of business, on arm’s length terms and priced at fair market value, (F) any guarantee as described in, and subject to the limitations contained in, Section 2.10(vii)(A), and (G) any Contract or transaction between any Group Company on the one hand and a Preferred Holder or its Affiliate(s) that is a real estate developer on the other hand pursuant to which the Group Company provides firsthand real estate sales or brokerage services to that real estate developer, if that Contract or transaction is in the ordinary course of business, on arm’s length terms and priced at fair market value.