Specified Actions. (a) In addition to any other vote, consent or approval required by the Company’s Organizational Documents, this Agreement or applicable law, for so long as the Stockholder’s Voting Percentage is 35% or more, the Company shall not, and shall cause its Subsidiaries not to, take or agree to take any of the following actions, in each case without the prior written consent of the Stockholder, which consent the Stockholder may withhold in its sole discretion: (i) declare or make any extraordinary or in-kind dividend with respect to any of the equity (or equity-linked) securities of the Company or any of its Subsidiaries, other than a dividend on a pro rata basis with respect to all stockholders of the Company or a dividend to the Company or any of its wholly owned Subsidiaries; (ii) issue, sell or place any new class of capital stock, equity or equity-linked securities or other Voting Securities of the Company or any of its Subsidiaries; (iii) issue any equity or equity-linked securities or other Voting Securities of the Company or any of its Subsidiaries, in any single transaction or series of related transactions: (i) in the case of securities issued pursuant to an option plan, equity plan, employment agreements, compensation arrangements or otherwise to managers, officers, directors or employees of the Company, constituting 1% or more of the then outstanding shares of Common Stock in any calendar year; or (ii) in any case, constituting 10% or more of the then outstanding shares of Common Stock; (iv) create, incur, issue, assume or otherwise become liable for (including through a merger, acquisition or otherwise) or refinance or guarantee any Indebtedness, in a single or series of related transactions, that would result in the Company and its Subsidiaries, on a consolidated basis, having or being liable for Indebtedness in an aggregate principal amount that would cause the Total Leverage Ratio to exceed 40%; (v) select, terminate or remove the Executive Chairman, the Chief Executive Officer, the Chief Financial Officer, the General Counsel or the President of Community Development (or any person serving in an equivalent role); (vi) change or adopt any compensation arrangements for the Executive Chairman, the Chief Executive Officer, the Chief Financial Officer, the General Counsel or the President of Community Development (or any Person serving in an equivalent role); (vii) make or approve any fundamental change in the Company’s business of developing residential and mixed-use real estate; (viii) acquire (including by way of merger, exchange offer, recapitalization, reorganization, liquidation or dissolution) any business, debt or equity interests, operations or assets of any Person, or make any investment in or loan to any Person, in any single transaction or series of related transactions, involving Capital Expenditures in excess of $20,000,000; (ix) (A) effect or approve any voluntary liquidation, dissolution or winding-up of the business and affairs of the Company or any of its Subsidiaries; (B) make or approve any filing of any bankruptcy petition or assignment for the benefit of creditors generally; (C) commence any voluntary proceeding that seeks reorganization or other relief under any bankruptcy or similar law; (D) seek the appointment of a trustee, receiver, custodian or other similar official with respect to the Company or any of its Subsidiaries or any substantial part of the Company’s or any of its Subsidiaries’ property; (E) consent to any involuntary bankruptcy or similar proceeding; or (F) authorize, approve, adopt or give effect to any resolution or agreement or plan of voluntary liquidation, dissolution or winding-up of the Company or any of its Subsidiaries; (x) enter into or permit any Subsidiary to enter into any strategic alliance or commercial agreement with a Person other than the Stockholder or a Subsidiary of the Stockholder that is of a nature similar to the Master Supply Agreement, of even date herewith, by and between the Company and the Stockholder; or (xi) effect any election of a Physical Settlement, Cash Settlement or Combination Settlement (each as defined in the First Supplemental Indenture) of Convertible Senior Notes in connection with any election by a holder of Convertible Senior Notes to convert its Convertible Senior Notes in accordance with the terms of the First Supplemental Indenture. (b) In addition to any other vote, consent or approval required by the Company’s Organizational Documents, this Agreement or applicable law, at all times when the Stockholder’s Voting Percentage is 35% or more, no member of the Company Group shall, subject to the provisos in Section 3.4(b)(i) and Section 3.4(b)(iv), take or agree to take any of the following actions, in each case without approval of a majority of the Independent Directors that are not Affiliated Directors: (i) enter into, amend, modify, terminate or approve any Related Party Transaction, or enter into any waiver, consent or election thereunder, including any amendment or modification to, termination of, or waiver, consent or election under, the Master Supply Agreement, in each case except to the extent any of the foregoing constitutes, or is the subject of, an Investment Committee Approval Transaction; (ii) amend, modify or terminate, or enter into any waiver, consent or election under, this Agreement or enter into any merger or business combination with any member of the Stockholder Group; (iii) consummate or approve any merger, business combination or similar transaction as to the Company in which the Stockholder receives consideration for its shares of the Common Stock of the Corporation that is greater in value on a per share basis than that received by the by holders of Minority Common Stock, or represents a different form of consideration from the form of consideration received by holders of Minority Common Stock for their shares of Common Stock; or (iv) settle any claim between the Company and the Stockholder, except to the extent such claim constitutes, or is the subject of, an Investment Committee Approval Transaction.
Appears in 2 contracts
Sources: Stockholder Agreement (Horton D R Inc /De/), Stockholder's Agreement (Forestar Group Inc.)
Specified Actions. (a) In addition Notwithstanding anything to any other vote, consent or approval required by the Company’s Organizational Documents, contrary contained in this Agreement or applicable lawin any other Related Agreement, for so long and except as specifically provided in the Stockholder’s Voting Percentage is 35% or morefollowing subsections, no Stockholder shall permit the Company, the Company shall not, and nor shall cause the Company permit any of its Subsidiaries not to, take or agree to take any of the following actions, in each case actions without the prior written consent Consent of the Stockholder, which consent the Stockholder may withhold in its sole discretionFleet Entities:
(ia) declare the issuance of Equity Securities of the Company or make any extraordinary of its Subsidiary, or in-kind dividend any Convertible Securities with respect thereto, except as expressly permitted by this Agreement or any other Related Agreement or pursuant to the exercise of a Company Option; provided that, notwithstanding the receipt of any Consent of Fleet Entities, any Person granted a Company Option (other than a Management Incentive Option) on or after the date hereof shall agree in writing to become bound hereby as a member of the Management Group.
(b) except as provided in the applicable Budget adopted pursuant to SECTION 2.3(a), the incurrence by the Company or any of its Subsidiaries of Funded Debt, other than pursuant to the equity Financing Agreement, if after giving effect thereto, the consolidated Funded Debt of the Company, other than pursuant to the Financing Agreement, shall exceed $50,000;
(c) the amendment, restatement, replacement, supplement or other modification of the Financing Agreement (or equity-linkedthe terms of any other Funded Debt of $50,000 or more) securities or the waiver of any material right or remedy thereunder (or with respect thereto), which in 14 18 either case would have a material adverse effect upon the operations of the Company or any of its Subsidiaries, if it were determined as of the date of such modification or waiver;
(d) the amendment, restatement, replacement, supplement or other than a dividend on a pro rata basis with respect to all stockholders modification of this Agreement, any other Related Agreement, the Certificate of Incorporation, Code of Regulations or By-Laws of the Company or the Surviving Corporation, or the waiver of any material right or remedy thereunder; or
(e) except as provided in the applicable Budget adopted pursuant to SECTION 2.3(a), the purchase or other acquisition of any assets or businesses, or the merger, consolidation, combination with any other Person or business, whether in a dividend to single transaction or a series of related transactions, if the Company aggregate consideration payable in connection with such purchase or any other acquisition or merger, consolidation or combination, when aggregated with the consideration payable in connection with all other such purchases or other acquisitions or mergers, consolidations or combinations during the preceding twelve (12) months for which a Consent of its wholly owned SubsidiariesFleet Entities has not been obtained, is greater than $50,000;
(f) except pursuant to the Financing Agreement, the sale, assignment, transfer, exchange, grant of a Lien or encumbrance or other disposition, or the engaging in any merger, consolidation or combination having a similar effect, or agreement with any Person (other than the Fleet Entities) to do or not to do any of the foregoing, whether in a single transaction or a series of related transactions, of, in or on any of the (i) any Equity Securities of any Subsidiary of the Company; or (ii) issueother than in the Ordinary Course of Business, sell or place any new class of capital stock, equity or equity-linked securities or other Voting Securities assets of the Company or any of its Subsidiaries;
(iiig) issue the declaration, payment, disbursement or making of any equity dividends, distributions, stock repurchase or equity-linked securities redemption or other Voting Securities of the Company or any of its Subsidiaries, in any single transaction or series of related transactions: (i) in the case of securities issued pursuant to an option plan, equity plan, employment agreements, compensation arrangements or otherwise to managers, officers, directors or employees of the Company, constituting 1% or more of the then outstanding shares of Common Stock in any calendar year; or (ii) in any case, constituting 10% or more of the then outstanding shares of Common Stock;
(iv) create, incur, issue, assume or otherwise become liable for (including through a merger, acquisition or otherwise) or refinance or guarantee any Indebtedness, in a single or series of related transactions, that would result in the Company and its Subsidiaries, on a consolidated basis, having or being liable for Indebtedness in an aggregate principal amount that would cause the Total Leverage Ratio to exceed 40%;
(v) select, terminate or remove the Executive Chairman, the Chief Executive Officer, the Chief Financial Officer, the General Counsel or the President of Community Development (or any person serving in an equivalent role);
(vi) change or adopt any compensation arrangements for the Executive Chairman, the Chief Executive Officer, the Chief Financial Officer, the General Counsel or the President of Community Development (or any Person serving in an equivalent role);
(vii) make or approve any fundamental change in the Company’s business of developing residential and mixed-use real estate;
(viii) acquire (including by way of merger, exchange offer, recapitalization, reorganization, liquidation or dissolution) any business, debt or equity interests, operations or assets of any Person, or make any investment in or loan to any Person, in any single transaction or series of related transactions, involving Capital Expenditures in excess of $20,000,000;
(ix) (A) effect or approve any voluntary liquidation, dissolution or winding-up of the business and affairs of the Company or any of its Subsidiaries; (B) make or approve any filing of any bankruptcy petition or assignment for the benefit of creditors generally; (C) commence any voluntary proceeding that seeks reorganization or other relief under any bankruptcy or similar law; (D) seek the appointment of a trustee, receiver, custodian or other similar official payments with respect to the Company Shares;
(h) except in the Ordinary Course of Business, the making of any loan or cash advance to any Stockholder (other than the Fleet Entities) or any of its Subsidiaries Affiliate or Family Member thereof, or the engaging in any substantial part of transaction therewith;
(i) the Company’s dissolution, liquidation or any of its Subsidiaries’ property; (E) consent to any involuntary bankruptcy or similar proceeding; or (F) authorize, approve, adopt or give effect to any resolution or agreement or plan of voluntary liquidation, dissolution or winding-winding up of the Company or any of its Subsidiaries;
(xj) enter into the commencement of a voluntary proceeding with respect to the Company or permit any Subsidiary to enter into any strategic alliance of its Subsidiaries under state or commercial agreement with a Person federal bankruptcy, insolvency, reorganization, rearrangement or similar laws;
(k) the appointment of an accounting firm other than a "big five" firm as the Stockholder or a Subsidiary of the Stockholder that is of a nature similar to the Master Supply Agreement, of even date herewith, by and between accountants for the Company and the Stockholder; or
(xi) effect any election of a Physical Settlement, Cash Settlement or Combination Settlement (each as defined in the First Supplemental Indenture) of Convertible Senior Notes in connection with any election by a holder of Convertible Senior Notes to convert its Convertible Senior Notes in accordance with the terms of the First Supplemental Indenture.
(b) In addition to any other vote, consent or approval required by the Company’s Organizational Documents, this Agreement or applicable law, at all times when the Stockholder’s Voting Percentage is 35% or more, no member of the Company Group shall, subject to the provisos in Section 3.4(b)(i) and Section 3.4(b)(iv), take or agree to take any of the following actions, in each case without approval of a majority of the Independent Directors that are not Affiliated Directors:
(i) enter into, amend, modify, terminate or approve any Related Party Transaction, or enter into any waiver, consent or election thereunder, including any amendment or modification to, termination of, or waiver, consent or election under, the Master Supply Agreement, in each case except to the extent any of the foregoing constitutes, or is the subject of, an Investment Committee Approval TransactionSubsidiaries;
(iil) amend, modify or terminate, or enter into any waiver, consent or election under, this Agreement or enter into any merger or business combination the agreement (other than under the terms and provisions of the Financing Agreement) with any member of the Stockholder Group;
(iii) consummate Person, which by its terms prohibits, materially restricts or approve any merger, business combination or similar transaction as to the Company in which the Stockholder receives consideration for its shares of the Common Stock of the Corporation that is greater in value on a per share basis than that received by the by holders of Minority Common Stock, or represents a different form of consideration from the form of consideration received by holders of Minority Common Stock for their shares of Common Stock; or
(iv) settle any claim between the Company and the Stockholder, except to the extent such claim constitutes, or is the subject of, an Investment Committee Approval Transaction.materially limits
Appears in 1 contract
Specified Actions. (a) In addition to any other vote, consent or approval required by the Company’s Organizational Documents, this Agreement or applicable lawLaw, for so long as the Stockholder’s Voting Percentage is 3530% or moregreater, the Company shall not, and shall cause its Subsidiaries not to, take or agree to take any of the following actions, in each case without the prior written consent of the Stockholder, which consent the Stockholder may withhold in its sole discretion:
(i) declare or make any extraordinary or in-kind dividend with respect to any of the equity (or equity-linked) securities of the Company or any of its Subsidiaries, other than a dividend on a pro rata basis with respect to all stockholders of the Company or a dividend to the Company or any of its wholly owned Subsidiaries;
(ii) issue, sell or place any new class of capital stock, equity or equity-linked securities or other Voting Securities of the Company or any of its Subsidiaries;
(iii) issue any equity or equity-linked securities or other Voting Securities of the Company or any of its Subsidiaries, in any single transaction or series of related transactions: (i) in the case of securities issued pursuant to an option plan, equity plan, employment agreements, compensation arrangements or otherwise to managers, officers, directors or employees of the Company, constituting 1% or more of the then outstanding shares of Common Stock in any calendar year; or (ii) in any case, constituting 10% or more of the then outstanding shares of Common Stock;
(iva) create, incur, issue, assume or otherwise become liable for (including through a merger, acquisition or otherwise) or refinance or guarantee any Indebtedness, in a single or series of related transactions, Indebtedness (excluding any Permitted Debt) that would result in the Company and its Subsidiariessubsidiaries, on a consolidated basis, having or being liable for Indebtedness in an aggregate principal amount that would cause result in the Total Leverage Debt to Cash Flow Ratio for the Company’s most recently ended four full fiscal quarters for which financial statements are available to exceed 40%be greater than 5.25 to 1.0 on a pro forma basis as if the additional Indebtedness had been incurred at the beginning of such four-quarter period;
(vb) selecttake any action or enter into any transaction that would reasonably be expected to result in a breach of or default under any credit agreement, terminate indenture, note, or remove similar instrument or security to which the Executive Chairman, the Chief Executive Officer, the Chief Financial Officer, the General Counsel or the President of Community Development (Stockholder or any person serving in an equivalent role)of its Affiliates is a party or is bound;
(vi) change or adopt any compensation arrangements for the Executive Chairman, the Chief Executive Officer, the Chief Financial Officer, the General Counsel or the President of Community Development (or any Person serving in an equivalent role);
(vii) make or approve any fundamental change in the Company’s business of developing residential and mixed-use real estate;
(viiic) acquire (including by way of merger, exchange offer, recapitalization, reorganization, liquidation or dissolution) any business, debt or equity interests, operations or assets of any Person, or make any investment in or loan to any Person, in any single transaction or series of related transactionstransactions (excluding the acquisition of products and equipment in the ordinary course of business), involving Capital Expenditures for consideration in excess of $20,000,0001,000,000,000;
(ixd) sell, lease, transfer, Encumber (Aother than Permitted Liens) effect or approve otherwise dispose of (including by way of merger, recapitalization, reorganization, liquidation or dissolution) any voluntary liquidationdivision, dissolution business, or winding-up of the business and affairs operations of the Company or any of its Subsidiaries; (B) make or approve any filing of any bankruptcy petition or assignment for the benefit of creditors generally; (C) commence any voluntary proceeding that seeks reorganization or other relief under any bankruptcy or similar law; (D) seek the appointment of a trustee, receiver, custodian or other similar official with respect to the Company or any of its Subsidiaries or any substantial part of the Company’s or any of its Subsidiaries’ property; (E) consent to any involuntary bankruptcy or similar proceeding; or (F) authorize, approve, adopt or give effect to any resolution or agreement or plan of voluntary liquidation, dissolution or winding-up equity interests of the Company or any of its Subsidiaries, in any single transaction or series of related transactions, for consideration in excess of $1,000,000,000;
(xe) enter into change the size of the Board;
(f) issue any equity or permit equity-linked securities or other Voting Securities of the Company or any Subsidiary to enter into of its Subsidiaries, in any strategic alliance single transaction or commercial agreement with a Person series of related transactions, (i) constituting 10% or more of the then outstanding shares of Common Stock (other than grants of incentive awards to officers or employees of the Company or its Subsidiaries that are approved by the Board or the applicable committee thereof or issuances of securities to the Company or any of its wholly-owned Subsidiaries) or (ii) for the purpose of redeeming or purchasing any indebtedness of the Company held by the Stockholder or a Subsidiary its Affiliates;
(i) except as required in the Organizational Documents, repurchase or redeem any equity (or equity-based) securities of the Stockholder that is Company or any of its non-wholly owned Subsidiaries, or (ii) make any extraordinary or in-kind dividend with respect to any of the equity (or equity-based) securities of the Company or any of its Subsidiaries, other than a nature similar dividend on a pro rata basis with respect to all stockholders of the Company, or a dividend to the Master Supply Agreement, Company or any of even date herewith, by and between the Company and the Stockholderits wholly owned Subsidiaries; or
(xih) effect any election of a Physical Settlementhire, Cash Settlement or Combination Settlement (each as defined in the First Supplemental Indenture) of Convertible Senior Notes in connection with any election by a holder of Convertible Senior Notes to convert terminate without cause, its Convertible Senior Notes in accordance with the terms of the First Supplemental Indenture.
(b) In addition to any other voteChief Executive Officer, consent or approval required by the Company’s Organizational Documents, this Agreement or applicable law, at all times when the Stockholder’s Voting Percentage is 35% or more, no member of the Company Group shall, subject to the provisos in Section 3.4(b)(i) and Section 3.4(b)(iv), take or agree to take any of the following actions, in each case without approval of a majority of the Independent Directors that are not Affiliated Directors:
(i) enter into, amend, modify, terminate or approve any Related Party Transaction, or enter into any waiver, consent or election thereunder, including any amendment or modification to, termination of, or waiver, consent or election under, the Master Supply Agreement, in each case except to the extent any of the foregoing constitutes, or is the subject of, an Investment Committee Approval Transaction;
(ii) amend, modify or terminate, or enter into any waiver, consent or election under, this Agreement or enter into any merger or business combination with any member of the Stockholder Group;
(iii) consummate or approve any merger, business combination or similar transaction as to the Company in which the Stockholder receives consideration for its shares of the Common Stock of the Corporation that is greater in value on a per share basis than that received by the by holders of Minority Common Stock, or represents a different form of consideration from the form of consideration received by holders of Minority Common Stock for their shares of Common Stock; or
(iv) settle any claim between the Company and the Stockholder, except to the extent such claim constitutes, or is the subject of, an Investment Committee Approval Transactiondo so.
Appears in 1 contract
Specified Actions. (a) In addition to any other vote, consent or approval required by the Company’s Organizational Documents, this Agreement or applicable law, for so long as the Stockholder’s Voting Percentage is 35% or more, the Company shall not, and shall cause its Subsidiaries not to, take or agree to take any of the following actions, in each case without the prior written consent of the Stockholder, which consent the Stockholder may withhold in its sole discretion:
(i) declare or make any extraordinary or in-kind dividend with respect to any of the equity (or equity-linked) securities of the Company or any of its Subsidiaries, other than a dividend on a pro rata basis with respect to all stockholders of the Company or a dividend to the Company or any of its wholly owned Subsidiaries;
(ii) issue, sell or place any new class of capital stock, equity or equity-linked securities or other Voting Securities of the Company or any of its Subsidiaries;
(iii) issue any equity or equity-linked securities or other Voting Securities of the Company or any of its Subsidiaries, in any single transaction or series of related transactions: (i) in the case of securities issued pursuant to an option plan, equity plan, employment agreements, compensation arrangements or otherwise to managers, officers, directors or employees of the Company, constituting 1% or more of the then outstanding shares of Common Stock in any calendar year; or (ii) in any case, constituting 10% or more of the then outstanding shares of Common Stock;
(iv) create, incur, issue, assume or otherwise become liable for (including through a merger, acquisition or otherwise) or refinance or guarantee any Indebtedness, in a single or series of related transactions, that would result in the Company and its Subsidiaries, on a consolidated basis, having or being liable for Indebtedness in an aggregate principal amount that would cause the Total Leverage Ratio to exceed 40%;
(v) select, terminate or remove the Executive Chairman, the Chief Executive Officer, the Chief Financial Officer, the General Counsel or the President of Community Development (or any person serving in an equivalent role);
(vi) change or adopt any compensation arrangements for the Executive Chairman, the Chief Executive Officer, the Chief Financial Officer, the General Counsel or the President of Community Development (or any Person serving in an equivalent role);
(vii) make or approve any fundamental change in the Company’s business of developing residential and mixed-use real estate;
(viii) acquire (including by way of merger, exchange offer, recapitalization, reorganization, liquidation or dissolution) any business, debt or equity interests, operations or assets of any Person, or make any investment in or loan to any Person, in any single transaction or series of related transactions, involving Capital Expenditures in excess of $20,000,000the Approval Threshold;
(ix) (A) effect or approve any voluntary liquidation, dissolution or winding-up of the business and affairs of the Company or any of its Subsidiaries; (B) make or approve any filing of any bankruptcy petition or assignment for the benefit of creditors generally; (C) commence any voluntary proceeding that seeks reorganization or other relief under any bankruptcy or similar law; (D) seek the appointment of a trustee, receiver, custodian or other similar official with respect to the Company or any of its Subsidiaries or any substantial part of the Company’s or any of its Subsidiaries’ property; (E) consent to any involuntary bankruptcy or similar proceeding; or (F) authorize, approve, adopt or give effect to any resolution or agreement or plan of voluntary liquidation, dissolution or winding-up of the Company or any of its Subsidiaries;
(x) enter into or permit any Subsidiary to enter into any strategic alliance or commercial agreement with a Person other than the Stockholder or a Subsidiary of the Stockholder that is of a nature similar to the Master Supply Agreement, of even date herewith, by and between the Company and the Stockholder; or
(xi) effect any election of a Physical Settlement, Cash Settlement or Combination Settlement (each as defined in the First Supplemental Indenture) of Convertible Senior Notes in connection with any election by a holder of Convertible Senior Notes to convert its Convertible Senior Notes in accordance with the terms of the First Supplemental Indenture.
(b) In addition to any other vote, consent or approval required by the Company’s Organizational Documents, this Agreement or applicable law, at all times when the Stockholder’s Voting Percentage is 35% or more, no member of the Company Group shall, subject to the provisos in Section 3.4(b)(i) and Section 3.4(b)(iv), take or agree to take any of the following actions, in each case without approval of a majority of the Independent Directors that are not Affiliated Directors:
(i) enter into, amend, modify, terminate or approve any Related Party Transaction, or enter into any waiver, consent or election thereunder, including any amendment or modification to, termination of, or waiver, consent or election under, the Master Supply Agreement, in each case except to the extent any of the foregoing constitutes, or is the subject of, an Investment Committee Approval Transaction;
(ii) amend, modify or terminate, or enter into any waiver, consent or election under, this Agreement or enter into any merger or business combination with any member of the Stockholder Group;
(iii) consummate or approve any merger, business combination or similar transaction as to the Company in which the Stockholder receives consideration for its shares of the Common Stock of the Corporation Company that is greater in value on a per share basis than that received by the by holders of Minority Common Stock, or represents a different form of consideration from the form of consideration received by holders of Minority Common Stock for their shares of Common Stock; or
(iv) settle any claim between the Company and the Stockholder, except to the extent such claim constitutes, or is the subject of, an Investment Committee Approval Transaction.
Appears in 1 contract
Specified Actions. (a) In addition to any other vote, consent or approval required by the Company’s Organizational Documents, this Agreement or applicable law, for so So long as the Stockholder’s Voting Percentage is 35UCAR directly or indirectly owns or holds 20% or moremore of the then outstanding shares of Common Stock, the Company shall not, and shall not cause or permit any of its Subsidiaries not to, take any of the following actions, or agree authorize or approve (including those by the Board or management) the taking of any of the following actions, or enter into any contract, understanding or arrangement to take any of the following actions, or publicly announce any intention or plan to take any of the following actions, in each case without the express prior written consent of the Stockholder, which consent the Stockholder may withhold in its sole discretionUCAR:
(ia) declare any issuance of any share of Common Stock (other than shares issued pursuant to the underwriting agreement in connection with the IPO and other than shares issued pursuant to Permitted Options) or make any extraordinary shares of preferred stock of the Company (the "Preferred Stock");
(b) any merger or inconsolidation of the Company with or into any Person, other than a wholly-kind dividend owned Subsidiary of the Company, or of any Subsidiary of the Company with or into any Person other than the Company or any other wholly-owned Subsidiary of the Company;
(c) any sale, transfer or other disposition of stock or other securities, debt or equity, of any Subsidiary of the Company or any grant of or issuance by the Company or any of its Subsidiaries of any rights with respect to thereto (other than as collateral security for any debt permitted by this Section 6.1)
(d) any acquisition, lease (as lessee or lessor and including a sale-leaseback) sale, transfer or other dispositions of any assets, business or operations of the equity Company or any Subsidiary of the Company (other than in the ordinary course of business) in a single transaction or equity-linkeda series of related transactions having a value in excess of $5,000,000;
(e) any declaration of any dividend or distribution with respect to, or any redemption, repurchase or other acquisition of, any securities of the Company or any Subsidiary of its Subsidiaries, the Company (other than a dividend on a pro rata basis with respect to all stockholders of the Company or a dividend to the Company or any of its wholly wholly-owned Subsidiaries;
(ii) issue, sell or place any new class of capital stock, equity or equity-linked securities or other Voting Securities of the Company or any of its Subsidiaries;
(iii) issue any equity or equity-linked securities or other Voting Securities of the Company or any of its Subsidiaries, in any single transaction or series of related transactions: (i) in the case of securities issued pursuant to an option plan, equity plan, employment agreements, compensation arrangements or otherwise to managers, officers, directors or employees Subsidiary of the Company, constituting 1% or more of the then outstanding shares of Common Stock in any calendar year; or (ii) in any case, constituting 10% or more of the then outstanding shares of Common Stock;
(iv) create, incur, issue, assume or otherwise become liable for (including through a merger, acquisition or otherwise) or refinance or guarantee any Indebtedness, in a single or series of related transactions, that would result in the Company and its Subsidiaries, on a consolidated basis, having or being liable for Indebtedness in an aggregate principal amount that would cause the Total Leverage Ratio to exceed 40%;
(v) select, terminate or remove the Executive Chairman, the Chief Executive Officer, the Chief Financial Officer, the General Counsel or the President of Community Development (or any person serving in an equivalent role);
(vi) change or adopt any compensation arrangements for the Executive Chairman, the Chief Executive Officer, the Chief Financial Officer, the General Counsel or the President of Community Development (or any Person serving in an equivalent role);
(vii) make or approve any fundamental change in the Company’s business of developing residential and mixed-use real estate;
(viii) acquire (including by way of merger, exchange offer, recapitalization, reorganization, liquidation or dissolutionf) any business, debt or equity interests, operations or assets of any Person, or make any investment in or loan to any Person, in any single transaction or series of related transactions, involving Capital Expenditures in excess of $20,000,000;
(ix) (A) effect or approve any voluntary liquidation, dissolution dissolution, commencement of bankruptcy, insolvency or winding-up of the business and affairs of the Company similar proceedings or any of its Subsidiaries; (B) make consent or approve any filing of any bankruptcy petition or acquiescence thereto, assignment for the benefit of creditors generally; (C) commence any voluntary proceeding that seeks reorganization or other relief under any bankruptcy or similar law; (D) seek the appointment of a trustee, receiver, custodian or other similar official actions with respect to the Company or any of its Subsidiaries or any substantial part Subsidiary of the Company’s ;
(g) any incurrence, refinancing or alteration of material terms of any debt, or grant or alteration of its Subsidiaries’ property; (E) consent to material terms of any involuntary bankruptcy lien, security interest or similar proceeding; mortgage, or (F) authorize, approve, adopt grant of guaranty of debt or give effect to any resolution or agreement or plan assumption of voluntary liquidation, dissolution or winding-up debt of another Person by the Company or any Subsidiary of its Subsidiariesthe Company (other than with respect to debt of up to $15,000,000 to be incurred as described in the final prospectus relating to the IPO);
(xh) enter into or permit any Subsidiary to enter into capital expenditure in any strategic alliance or commercial agreement with a Person other than the Stockholder or a Subsidiary year in excess of the Stockholder that is of a nature similar to the Master Supply Agreement, of even date herewith, by and between the Company and the Stockholder; or
(xi) effect any election of a Physical Settlement, Cash Settlement or Combination Settlement (each as defined amount specified in the First Supplemental Indenture) of Convertible Senior Notes in connection with any election by a holder of Convertible Senior Notes to convert its Convertible Senior Notes in accordance with the terms of the First Supplemental Indenture.
(b) In addition to any other vote, consent or approval required annual business plan/budget for that year approved by the Company’s Organizational Documents, this Agreement or applicable law, at all times when Board and by the Stockholder’s Voting Percentage is 35% or more, no member directors of the Company Group shallnominated by UCAR (or, subject to the provisos if no such plan/budget is so approved for such year, in Section 3.4(b)(i) and Section 3.4(b)(iv), take or agree to take any excess of the following actions, amount specified in each case without approval of a majority of such plan/budget for the Independent Directors that are not Affiliated Directors:
(i) enter into, amend, modify, terminate or approve any Related Party Transaction, or enter into any waiver, consent or election thereunder, including any amendment or modification prior year with respect to, termination of, or waiver, consent or election under, the Master Supply Agreement, in each case except to the extent any of the foregoing constitutes, or is the subject of, an Investment Committee Approval Transaction;
(ii) amend, modify or terminate, or enter into any waiver, consent or election under, this Agreement or enter into any merger or business combination with any member of the Stockholder Group;
(iii) consummate or approve any merger, business combination or similar transaction as to the Company in which the Stockholder receives consideration for its shares of the Common Stock of the Corporation that is greater in value on a per share basis than that received by the by holders of Minority Common Stock, or represents a different form of consideration from the form of consideration received by holders of Minority Common Stock for their shares of Common Stock; or
(iv) settle any claim between the Company and the Stockholder, except to the extent such claim constitutes, or is the subject of, an Investment Committee Approval Transaction.
Appears in 1 contract
Specified Actions. (a) In addition to any other vote, consent or approval required by the Company’s Organizational Documents, this Agreement or applicable law, for so long as the Stockholder’s Voting Percentage is 35% or more, the Company shall not, and shall cause its Subsidiaries not to, take or agree to take any of the following actions, in each case without the prior written consent of the Stockholder, which consent the Stockholder may withhold in its sole discretion:
(i) declare or make any extraordinary or in-kind dividend with respect to any of the equity (or equity-linked) securities of the Company or any of its Subsidiaries, other than a dividend on a pro rata basis with respect to all stockholders of the Company or a dividend to the Company or any of its wholly owned Subsidiaries;
(ii) issue, sell or place any new class of capital stock, equity or equity-equity- linked securities or other Voting Securities of the Company or any of its Subsidiaries;
(iii) issue any equity or equity-linked securities or other Voting Securities of the Company or any of its Subsidiaries, in any single transaction or series of related transactions: (i) in the case of securities issued pursuant to an option plan, equity plan, employment agreements, compensation arrangements or otherwise to managers, officers, directors or employees of the Company, constituting 1% or more of the then outstanding shares of Common Stock in any calendar year; or (ii) in any case, constituting 10% or more of the then outstanding shares of Common Stock;
(iv) create, incur, issue, assume or otherwise become liable for (including through a merger, acquisition or otherwise) or refinance or guarantee any Indebtedness, in a single or series of related transactions, that would result in the Company and its Subsidiaries, on a consolidated basis, having or being liable for Indebtedness in an aggregate principal amount that would cause the Total Leverage Ratio to exceed 40%;
(v) select, terminate or remove the Executive Chairman, the Chief Executive Officer, the Chief Financial Officer, the General Counsel or the President of Community Development (or any person serving in an equivalent role);
(vi) change or adopt any compensation arrangements for the Executive Chairman, the Chief Executive Officer, the Chief Financial Officer, the General Counsel or the President of Community Development (or any Person serving in an equivalent role);
(vii) make or approve any fundamental change in the Company’s business of developing residential and mixed-use real estate;
(viii) acquire (including by way of merger, exchange offer, recapitalization, reorganization, liquidation or dissolution) any business, debt or equity interests, operations or assets of any Person, or make any investment in or loan to any Person, in any single transaction or series of related transactions, involving Capital Expenditures in excess of $20,000,000;
(ix) (A) effect or approve any voluntary liquidation, dissolution or winding-up of the business and affairs of the Company or any of its Subsidiaries; (B) make or approve any filing of any bankruptcy petition or assignment for the benefit of creditors generally; (C) commence any voluntary proceeding that seeks reorganization or other relief under any bankruptcy or similar law; (D) seek the appointment of a trustee, receiver, custodian or other similar official with respect to the Company or any of its Subsidiaries or any substantial part of the Company’s or any of its Subsidiaries’ property; (E) consent to any involuntary bankruptcy or similar proceeding; or (F) authorize, approve, adopt or give effect to any resolution or agreement or plan of voluntary liquidation, dissolution or winding-up of the Company or any of its Subsidiaries;
(x) enter into or permit any Subsidiary to enter into any strategic alliance or commercial agreement with a Person other than the Stockholder or a Subsidiary of the Stockholder that is of a nature similar to the Master Supply Agreement, of even date herewith, by and between the Company and the Stockholder; or
(xi) effect any election of a Physical Settlement, Cash Settlement or Combination Settlement (each as defined in the First Supplemental Indenture) of Convertible Senior Notes in connection with any election by a holder of Convertible Senior Notes to convert its Convertible Senior Notes in accordance with the terms of the First Supplemental Indenture.
(b) In addition to any other vote, consent or approval required by the Company’s Organizational Documents, this Agreement or applicable law, at all times when the Stockholder’s Voting Percentage is 35% or more, no member of the Company Group shall, subject to the provisos in Section 3.4(b)(i) and Section 3.4(b)(iv), take or agree to take any of the following actions, in each case without approval of a majority of the Independent Directors that are not Affiliated Directors:
(i) enter into, amend, modify, terminate or approve any Related Party Transaction, or enter into any waiver, consent or election thereunder, including any amendment or modification to, termination of, or waiver, consent or election under, the Master Supply Agreement, in each case except to the extent any of the foregoing constitutes, or is the subject of, an Investment Committee Approval Transaction;
(ii) amend, modify or terminate, or enter into any waiver, consent or election under, this Agreement or enter into any merger or business combination with any member of the Stockholder Group;
(iii) consummate or approve any merger, business combination or similar transaction as to the Company in which the Stockholder receives consideration for its shares of the Common Stock of the Corporation that is greater in value on a per share basis than that received by the by holders of Minority Common Stock, or represents a different form of consideration from the form of consideration received by holders of Minority Common Stock for their shares of Common Stock; or
(iv) settle any claim between the Company and the Stockholder, except to the extent such claim constitutes, or is the subject of, an Investment Committee Approval Transaction.
Appears in 1 contract
Sources: Stockholder Agreement
Specified Actions. (a) In addition to any other vote, consent or approval required by the Company’s 's Organizational Documents, this Agreement or applicable lawLaw, for so long as the Stockholder’s 's Voting Percentage is 3530% or moregreater, the Company shall not, and shall cause its Subsidiaries not to, take or agree to take any of the following actions, in each case without the prior written consent of the Stockholder, which consent the Stockholder may withhold in its sole discretion:
(i) declare or make any extraordinary or in-kind dividend with respect to any of the equity (or equity-linked) securities of the Company or any of its Subsidiaries, other than a dividend on a pro rata basis with respect to all stockholders of the Company or a dividend to the Company or any of its wholly owned Subsidiaries;
(ii) issue, sell or place any new class of capital stock, equity or equity-linked securities or other Voting Securities of the Company or any of its Subsidiaries;
(iii) issue any equity or equity-linked securities or other Voting Securities of the Company or any of its Subsidiaries, in any single transaction or series of related transactions: (i) in the case of securities issued pursuant to an option plan, equity plan, employment agreements, compensation arrangements or otherwise to managers, officers, directors or employees of the Company, constituting 1% or more of the then outstanding shares of Common Stock in any calendar year; or (ii) in any case, constituting 10% or more of the then outstanding shares of Common Stock;
(iva) create, incur, issue, assume or otherwise become liable for (including through a merger, acquisition or otherwise) or refinance or guarantee any Indebtedness, in a single or series of related transactions, Indebtedness (excluding any Permitted Debt) that would result in the Company and its Subsidiariessubsidiaries, on a consolidated basis, having or being liable for Indebtedness in an aggregate principal amount that would cause result in the Total Leverage Debt to Cash Flow Ratio for the Company's most recently ended four full fiscal quarters for which financial statements are available to exceed 40%be greater than 5.25 to 1.0 on a pro forma basis as if the additional Indebtedness had been incurred at the beginning of such four-quarter period;
(vb) selecttake any action or enter into any transaction that would reasonably be expected to result in a breach of or default under any credit agreement, terminate indenture, note, or remove similar instrument or security to which the Executive Chairman, the Chief Executive Officer, the Chief Financial Officer, the General Counsel or the President of Community Development (Stockholder or any person serving in an equivalent role)of its Affiliates is a party or is bound;
(vi) change or adopt any compensation arrangements for the Executive Chairman, the Chief Executive Officer, the Chief Financial Officer, the General Counsel or the President of Community Development (or any Person serving in an equivalent role);
(vii) make or approve any fundamental change in the Company’s business of developing residential and mixed-use real estate;
(viiic) acquire (including by way of merger, exchange offer, recapitalization, reorganization, liquidation or dissolution) any business, debt or equity interests, operations or assets of any Person, or make any investment in or loan to any Person, in any single transaction or series of related transactionstransactions (excluding the acquisition of products and equipment in the ordinary course of business), involving Capital Expenditures for consideration in excess of $20,000,0001,000,000,000;
(ixd) sell, lease, transfer, Encumber (Aother than Permitted Liens) effect or approve otherwise dispose of (including by way of merger, recapitalization, reorganization, liquidation or dissolution) any voluntary liquidationdivision, dissolution business, or winding-up of the business and affairs operations of the Company or any of its Subsidiaries; (B) make or approve any filing of any bankruptcy petition or assignment for the benefit of creditors generally; (C) commence any voluntary proceeding that seeks reorganization or other relief under any bankruptcy or similar law; (D) seek the appointment of a trustee, receiver, custodian or other similar official with respect to the Company or any of its Subsidiaries or any substantial part of the Company’s or any of its Subsidiaries’ property; (E) consent to any involuntary bankruptcy or similar proceeding; or (F) authorize, approve, adopt or give effect to any resolution or agreement or plan of voluntary liquidation, dissolution or winding-up equity interests of the Company or any of its Subsidiaries, in any single transaction or series of related transactions, for consideration in excess of $1,000,000,000;
(xe) enter into change the size of the Board;
(f) issue any equity or permit equity-linked securities or other Voting Securities of the Company or any Subsidiary to enter into of its Subsidiaries, in any strategic alliance single transaction or commercial agreement with a Person series of related transactions, (i) constituting 10% or more of the then outstanding shares of Common Stock (other than grants of incentive awards to officers or employees of the Company or its Subsidiaries that are approved by the Board or the applicable committee thereof or issuances of securities to the Company or any of its wholly-owned Subsidiaries) or (ii) for the purpose of redeeming or purchasing any indebtedness of the Company held by the Stockholder or a Subsidiary its Affiliates;
(i) except as required in the Organizational Documents, repurchase or redeem any equity (or equity-based) securities of the Stockholder that is Company or any of its non-wholly owned Subsidiaries, or (ii) make any extraordinary or in-kind dividend with respect to any of the equity (or equity-based) securities of the Company or any of its Subsidiaries, other than a nature similar dividend on a pro rata basis with respect to all stockholders of the Company, or a dividend to the Master Supply Agreement, Company or any of even date herewith, by and between the Company and the Stockholderits wholly owned Subsidiaries; or
(xih) effect any election of a Physical Settlementhire, Cash Settlement or Combination Settlement (each as defined in the First Supplemental Indenture) of Convertible Senior Notes in connection with any election by a holder of Convertible Senior Notes to convert terminate without cause, its Convertible Senior Notes in accordance with the terms of the First Supplemental Indenture.
(b) In addition to any other voteChief Executive Officer, consent or approval required by the Company’s Organizational Documents, this Agreement or applicable law, at all times when the Stockholder’s Voting Percentage is 35% or more, no member of the Company Group shall, subject to the provisos in Section 3.4(b)(i) and Section 3.4(b)(iv), take or agree to take any of the following actions, in each case without approval of a majority of the Independent Directors that are not Affiliated Directors:
(i) enter into, amend, modify, terminate or approve any Related Party Transaction, or enter into any waiver, consent or election thereunder, including any amendment or modification to, termination of, or waiver, consent or election under, the Master Supply Agreement, in each case except to the extent any of the foregoing constitutes, or is the subject of, an Investment Committee Approval Transaction;
(ii) amend, modify or terminate, or enter into any waiver, consent or election under, this Agreement or enter into any merger or business combination with any member of the Stockholder Group;
(iii) consummate or approve any merger, business combination or similar transaction as to the Company in which the Stockholder receives consideration for its shares of the Common Stock of the Corporation that is greater in value on a per share basis than that received by the by holders of Minority Common Stock, or represents a different form of consideration from the form of consideration received by holders of Minority Common Stock for their shares of Common Stock; or
(iv) settle any claim between the Company and the Stockholder, except to the extent such claim constitutes, or is the subject of, an Investment Committee Approval Transactiondo so.
Appears in 1 contract
Sources: Business Combination Agreement (Metropcs Communications Inc)