Certain Other Matters. (i) Each Third Point Designee or Replacement shall be entitled to resign from the Board at any time in his or her discretion. For purposes of this Agreement, the “Standstill Period” shall mean the period from the date of this Agreement until the later of (x) 12:01 a.m. on the sixtieth (60th) day prior to the advance notice deadline for making director nominations at the Company’s 2015 Annual Meeting, and (y) thirty days after such time as none of the Third Point Designees (including any Replacements) are members of the Board; provided, however, that with respect to each succeeding annual meeting of Company shareholders after the 2014 Annual Meeting, if Third Point and the Company agree in writing to include the Third Point Designees (or their Replacement) on the Company’s slate of director nominees for any annual meeting of Company shareholders after the 2014 Annual Meeting, the Standstill Period shall continue through and including the date of such applicable annual meeting and if the Third Point Designees are so elected by the shareholders as directors as part of the incumbent Board slate of nominees, then the Standstill Period shall further extend until the later of (x) 12:01 a.m. on the sixtieth (60th) day prior to the advance notice deadline for making director nominations at the annual meeting of Company shareholders subsequent to such re-election of the Third Point Designees to the Board, and (y) thirty days after such time as none of the Third Point Designees (including any Replacements) are members of the Board; provided, further, that if the Third Point Designees are not so elected and do not resign from the Board, the Standstill Period shall continue until thirty days after such time as none of the Third Point Designees (including any Replacements) are members of the Board. Notwithstanding anything to the contrary in this Agreement, during the thirty day period following the resignation of all Third Point Designees, Third Point may take all actions appropriate to prepare and deliver to the Company a notice of director nominations for the upcoming annual meeting, but during such thirty-day period neither Third Point nor the Company shall make any public disclosure that would otherwise be contrary to the terms of this Agreement, except as may be required by law. (ii) Notwithstanding anything to the contrary in this Section 2(a), the Company agrees that for so long as any of the Third Point Designees (or their Replacements) are on the Board (A) the Board shall promptly notify Third Point in writing of its decision not to nominate any Third Point Designee for election at the 2015 Annual Meeting or any subsequent annual meeting of shareholders (which written notice, if any, shall in any event not be delivered any later than 60 days prior to the advance notice deadline for making director nominations at such upcoming annual meeting), and (B) the Board shall take all appropriate action to (I) provide Third Point with at least a 60-day period from the time Third Point is notified in writing that any of the Third Point Designees have not been so nominated to comply with the advance notice provisions for nominations of directors contained in the Bylaws at such upcoming annual meeting and (II) cause such upcoming annual meeting not to be held prior to 90 days following the time Third Point is notified that any of the Third Point Designees has not been so nominated. (b) During the Standstill Period, no member of Third Point shall, directly or indirectly, and each member of Third Point shall cause each Third Point Affiliate not to, directly or indirectly (it being understood and agreed that the following restrictions shall not apply to the Third Point Designees acting solely in their capacities as a director of the Company consistent with their fiduciary duties to the Company): (i) solicit proxies or written consents of stockholders or conduct any other type of referendum (binding or non-binding) with respect to, or from the holders of, the Voting Securities (as defined below), or become a “participant” (as such term is defined in Instruction 3 to Item 4 of Schedule 14A promulgated under the Exchange Act) in or assist any Third Party (as defined herein) in any “solicitation” of any proxy, consent or other authority (as such terms are defined under the Exchange Act) to vote any shares of the Voting Securities (other than such encouragement, advice or influence that is consistent with Company management’s recommendation in connection with such matter); (ii) encourage, advise or influence any other person or assist any Third Party in so encouraging, assisting or influencing any person with respect to the giving or withholding of any proxy, consent or other authority to vote or in conducting any type of referendum (other than such encouragement, advice or influence that is consistent with Company management’s recommendation in connection with such matter); (iii) form or join in a partnership, limited partnership, syndicate or other group, including a “group” as defined under Section 13(d) of the Exchange Act, with respect to the Voting Securities (for the avoidance of doubt, excluding any group composed solely of Third Point and their Affiliates) or otherwise support or participate in any effort by a Third Party with respect to the matters set forth in clauses (i), (vii) or (ix) herein; (iv) present at any annual meeting or any special meeting of the Company’s stockholders or through action by written consent any proposal for consideration for action by stockholders or seek the removal of any member of the Board or (except as explicitly permitted by this Agreement with respect to a Replacement and other than through action at the Board by a Third Point Designee acting in his or her capacity as such) propose any nominee for election to the Board or seek representation on the Board; (v) other than in Rule 144 open market broker sale transactions where the identity of the purchaser is not known and in underwritten widely dispersed public offerings, sell, offer or agree to sell directly or indirectly, through swap or hedging transactions or otherwise, the securities of the Company or any rights decoupled from the underlying securities held by Third Point to any person or entity not a party to this agreement (a “Third Party”) that would knowingly result in such Third Party, together with its Affiliates, owning, controlling or otherwise having any beneficial or other ownership interest in the aggregate of 5% or more of the shares of Common Stock outstanding at such time or would increase the beneficial or other ownership interest of any Third Party who, together with its Affiliates, has a beneficial or other ownership interest in the aggregate of 5% or more of the shares of Common Stock outstanding at such time, except in each case in a transaction approved by the Board; (vi) grant any proxy, consent or other authority to vote with respect to any matters (other than to the named proxies included in the Company’s proxy card for any annual meeting or special meeting of stockholders) or deposit any Voting Securities of the Company in a voting trust or subject them to a voting agreement or other arrangement of similar effect with respect to any annual meeting except as provided in Section 2(c) below, special meeting of stockholders or action by written consent (excluding customary brokerage accounts, margin accounts, prime brokerage accounts and the like); (vii) make any request for stocklist materials or other books and records of the Company under Section 220 of the Delaware General Corporation Law or otherwise; (viii) make, or cause to be made, any statement or announcement that relates to and constitutes an ad hominem attack on, or relates to and otherwise disparages, the Company, its officers or its directors or any person who has served as an officer or director of the Company in the past, or who serves on or following the date of this Agreement as an officer or director of the Company: (i) in any document or report filed with or furnished to the SEC or any other governmental agency, (ii) in any press release or other publicly available format, or (iii) to any analyst, journalist or member of the media (including without limitation, in a television, radio, newspaper or magazine interview) (and the Company agrees that this Section 2(b)(viii) shall apply mutatis mutandis to the Company and its directors and officers with respect to Third Point); (ix) other than litigation by Third Point to enforce the provisions of this Agreement, institute, solicit, assist or join, as a party, any litigation, arbitration or other proceeding against or involving the Company or any of its current or former directors or officers (including derivative actions); (x) without the prior approval of the Board, separately or in conjunction with any other person or entity in which it is or proposes to be either a principal, partner or financing source or is acting or proposes to act as broker or agent for compensation, propose (publicly, privately or to the Company) or participate in, effect or seek to effect, any tender offer or exchange offer, merger, acquisition, reorganization, restructuring, recapitalization or other business combination involving the Company or a material amount of the assets or businesses of the Company (collectively, an “Extraordinary Transaction”) or encourage, initiate or support any other Third Party in any such activity; provided, that Third Point may commence or participate in any tender offer or exchange offer, or a combination thereof, in each such case, that is made for all of the shares of Common Stock outstanding at such time at the same per-share consideration, the consummation of which is conditioned upon acceptance by a majority of the outstanding shares of Common Stock (calculated on a fully diluted basis), so long as the Company and its stockholders receive an irrevocable, legally binding written commitment from Third Point (or such other third party making the
Appears in 3 contracts
Samples: Support Agreement (Sothebys), Support Agreement (Sothebys), Support Agreement (Third Point LLC)
Certain Other Matters. (ia) Each Third Point Designee or Replacement shall be entitled to resign from the Board at any time in his or her discretion. For purposes of this Agreement, the “Standstill Period” shall mean the period from the date of this Agreement until the later of (x) 12:01 a.m. a.m., Eastern time, on the sixtieth (60th) 30th day prior to the advance notice deadline for making director nominations at the Company’s 2015 2018 Annual Meeting, and (y) thirty days after such time as none of the Third Point Designees (including any Replacements) are members of the Board; provided, however, that with respect to each succeeding annual meeting of Company shareholders after the 2014 Annual Meeting, if Third Point and the Company agree in writing to include the Third Point Designees (or their Replacement) on the Company’s slate of director nominees for any annual meeting of Company shareholders after the 2014 Annual Meeting, the Standstill Period shall continue through and including the date of such applicable annual meeting and if the Third Point Designees are so elected by the shareholders as directors as part of the incumbent Board slate of nominees, then the Standstill Period shall further extend until the later of (x) 12:01 a.m. on the sixtieth (60th) day prior to the advance notice deadline for making director nominations at the annual meeting of Company shareholders subsequent to such re-election of the Third Point Designees to the Board, and (y) thirty days after such time as none of the Third Point Designees (including any Replacements) are members of the Board; provided, further, that if the Third Point Designees are not so elected and do not resign from the Board, the Standstill Period shall continue until thirty days after such time as none of the Third Point Designees (including any Replacements) are members of the Board. Notwithstanding anything to the contrary in this Agreement, during the thirty day period following the resignation of all Third Point Designees, Third Point may take all actions appropriate to prepare and deliver to the Company a notice of director nominations for the upcoming annual meeting, but during such thirty-day period neither Third Point nor the Company shall make any public disclosure that would otherwise be contrary to the terms of this Agreement, except as may be required by law.
(ii) Notwithstanding anything to the contrary in this Section 2(a), the Company agrees that for so long as any of the Third Point Designees (or their Replacements) are on the Board (A) the Board shall promptly notify Third Point in writing of its decision not to nominate any Third Point Designee for election at the 2015 Annual Meeting or any subsequent annual meeting of shareholders (which written notice, if any, shall in any event not be delivered any later than 60 days prior to the advance notice deadline for making director nominations at such upcoming annual meeting), and (B) the Board shall take all appropriate action to (I) provide Third Point with at least a 60-day period from the time Third Point is notified in writing that any of the Third Point Designees have not been so nominated to comply with the advance notice provisions for nominations of directors contained in the Bylaws at such upcoming annual meeting and (II) cause such upcoming annual meeting not to be held prior to 90 days following the time Third Point is notified that any of the Third Point Designees has not been so nominated.
(b) During the Standstill Period, no member of Third Point Xxxxxxx Capital shall, directly or indirectly, and each member of Third Point Xxxxxxx Capital shall cause each Third Point Xxxxxxx Capital Affiliate (as defined herein) not to, and shall use its reasonable best efforts to cause each of its Associates not to, directly or indirectly (it being understood and agreed that the following restrictions shall not apply to the Third Point Designees New Directors (and any Replacement) acting solely in their capacities as a director of the Company consistent with their fiduciary duties to the Company):
(i) acquire or cause to be acquired Beneficial Ownership of any Voting Securities (as defined herein) (for purposes of this calculation, including any Synthetic Positions) such that immediately following such purchase Xxxxxxx Capital and the Xxxxxxx Capital Affiliates would collectively Beneficially Own (for purposes of this calculation, including any Synthetic Positions as Beneficial Ownership of the associated Voting Securities) more than fifteen (15%) of the Company’s issued and outstanding Voting Securities;
(ii) solicit proxies or written consents of stockholders or conduct any other type of referendum (binding or non-binding) with respect to, or from the holders of, the Voting Securities (as defined below)Securities, or become a “participant” (as such term is defined in Instruction 3 to Item 4 of Schedule 14A promulgated under the Securities Exchange Act of 1934, as amended (the “Exchange Act) ”)), in or assist any Third Party Person (as defined herein) not a party to this Agreement (a “Third Party”) in any “solicitation” of any proxy, consent or other authority (as such terms are defined under the Exchange Act) to vote any shares of the Voting Securities (other than such encouragement, advice or influence that is consistent with Company management’s recommendation in connection with such matter);
(iiiii) encourage, advise or influence any other person Person or assist any Third Party in so encouraging, assisting or influencing any person Person with respect to the giving or withholding of any proxy, consent or other authority to vote or in conducting any type of referendum (other than such encouragement, advice or influence that is consistent with Company managementthe Company’s recommendation in connection with such matter);
(iiiiv) form or join in a partnership, limited partnership, syndicate or other group, including a “group” as defined under Section 13(d) of the Exchange Act, with respect to the Voting Securities (for the avoidance of doubt, excluding any group composed solely of Third Point Xxxxxxx Capital and their the Xxxxxxx Capital Affiliates) or otherwise support or participate in any effort by a Third Party with respect to the matters set forth in clauses (i), (vii) or (ix) herein;
(ivv) present at any annual meeting or any special meeting of the Company’s stockholders or through action by written consent any proposal for consideration for action by stockholders or seek the removal of any member of the Board or (except as explicitly expressly permitted by in this Agreement with respect to a Replacement and other than through action at the Board by a Third Point Designee acting in his or her capacity as suchReplacement) propose any nominee for election to the Board or seek representation on the Board;
(v) other than in Rule 144 open market broker sale transactions where the identity of the purchaser is not known and in underwritten widely dispersed public offerings, sell, offer or agree to sell directly or indirectly, through swap or hedging transactions or otherwise, the securities of the Company or any rights decoupled from the underlying securities held by Third Point to any person or entity not a party to this agreement (a “Third Party”) that would knowingly result in such Third Party, together with its Affiliates, owning, controlling or otherwise having any beneficial or other ownership interest in the aggregate of 5% or more of the shares of Common Stock outstanding at such time or would increase the beneficial or other ownership interest of any Third Party who, together with its Affiliates, has a beneficial or other ownership interest in the aggregate of 5% or more of the shares of Common Stock outstanding at such time, except in each case in a transaction approved by the Board;
(vi) grant any proxy, consent or other authority to vote with respect to any matters (other than to the named proxies included in the Company’s proxy card for any annual meeting or special meeting of stockholders) or deposit any Voting Securities of the Company in a voting trust or subject them to a voting agreement or other arrangement of similar effect with respect to any annual meeting except as provided in Section 2(c) below, special meeting of stockholders or action by written consent (excluding customary brokerage accounts, margin accounts, prime brokerage accounts and the like);
(vii) make any request for stocklist stockholders list materials or other books and records of the Company under Section 220 of the Delaware General Corporation Law or otherwise;
(viiivii) make, or cause to be made, any statement or announcement that relates to and constitutes an ad hominem attack on, or relates to and otherwise disparages, the Company, its officers or its directors or any person who has served as an officer or director of the Company in the past, or who serves on or following the date of this Agreement as an officer or director of the Company: (i) in any document or report filed with or furnished to the SEC or any other governmental agency, (ii) in any press release or other publicly available format, or (iii) to any analyst, journalist or member of the media (including without limitation, in a television, radio, newspaper or magazine interview) (and the Company agrees that this Section 2(b)(viii) shall apply mutatis mutandis to the Company and its directors and officers with respect to Third Point);
(ix) other than litigation by Third Point to enforce the provisions of this Agreement, institute, solicit, assist solicit or join, as a party, any litigation, arbitration or other proceeding (including any derivative action) against or involving the Company or any of its future, current or former directors or officers or employees; provided, that nothing shall prevent Xxxxxxx Capital from (including derivative actions)A) bringing litigation to enforce the provisions of this Agreement, (B) making counterclaims with respect to any proceeding initiated by, or on behalf of, the Company against Xxxxxxx Capital, or (C) exercising statutory appraisal rights; provided, further, that the foregoing shall also not prevent Xxxxxxx Capital from responding to or complying with a validly issued legal process;
(viii) make any public recommendation or other public statement with respect to mergers, acquisitions or other business combinations or extraordinary transactions involving the Company (“Extraordinary Transactions”) or solicit any third party to make an offer or proposal with respect to any Extraordinary Transaction;
(ix) enter into any negotiations, agreements, arrangements or understandings with any Third Party with respect to the matters set forth in this Section 2; or
(x) without contest the prior approval validity of, or publicly request any waiver of, the obligations set forth in this Section 2(b). The restrictions set forth above in this Section 2(b) shall not apply for the duration of any period that the Company is not in material compliance with its obligations under Sections 1(a)-(f) and 1(i) and Section 17 (after written notice of such material non-compliance has been provided to the Company and the Company has been given a reasonable opportunity to cure such material non-compliance; provided that such notice and opportunity to cure shall not apply in the case of material noncompliance with Sections 1(a), 1(b), 1(e), or 1(i)).
(c) Provided that the standstill obligations are in full force and effect, Xxxxxxx Capital together with all controlled Affiliates of the members of Xxxxxxx Capital (such controlled Affiliates, collectively and individually, the “Xxxxxxx Capital Affiliates”) shall cause all Voting Securities owned by them directly or indirectly, whether owned of record or Beneficially Owned, as of the record date for the 2017 Annual Meeting, that are entitled to vote, to be present for quorum purposes and to be voted, (i) for all directors nominated by the Board for election at the 2017 Annual Meeting, and in favor of auditor ratification and “say-on-pay” proposals, and (ii) in accordance with the recommendation of the Board, separately or in conjunction with provided that such recommendation is unanimous (of those voting) and includes the affirmative vote of the 2016 Director and the New Directors (and any Replacement), on any other person proposals or entity in which it is other business that comes before such meeting (other than any proposals relating to Extraordinary Transactions or proposes to be either a principal, partner or financing source or is acting or proposes to act as broker or agent for compensation, propose (publicly, privately or any amendment to the Company’s organizational documents).
(d) or participate inIf at any time following the date of this Agreement, effect or seek to effect, any tender offer or exchange offer, merger, acquisition, reorganization, restructuring, recapitalization or other business combination involving Xxxxxxx Capital’s aggregate Net Long Position in the Company or a material amount of the assets or businesses of the Company (collectively, an “Extraordinary Transaction”) or encourage, initiate or support any other Third Party in any such activity; provided, that Third Point may commence or participate in any tender offer or exchange offer, or a combination thereof, in each such case, that Common Shares is made for all of the shares of Common Stock outstanding at such time at the same per-share consideration, the consummation of which is conditioned upon acceptance by a majority less than 5% of the outstanding shares of Common Stock Shares (calculated on a fully diluted basisthe “Minimum Ownership Level”), so long as (i) Xxxxxxx Capital shall lose its right to identify an Initial New Director and a Replacement, (ii) the Company and its stockholders receive an irrevocableshall not be obligated to appoint any New Director, legally binding written commitment from Third Point (iii) the Company shall not be obligated to nominate the 2016 Director or the Initial New Director (or such other third party making theany respective Replacement) and/or the Subsequent New Director for election to the Board at any meeting of stockholders at which directors are to be elected occurring after the time at which Xxxxxxx Capital no longer satisfies the Minimum Ownership Level, (iv) the restrictions regarding the size of the Board shall no longer be applicable, and (v) the Board may choose to remove the 2016 Director (or any Replacement) from the Nomination and Governance Committee. Notwithstanding anything to the contrary contained herein, the parties agree that even if Xxxxxxx Capital’s Net Long Position is less than the Minimum Ownership Level, neither the Initial New Director, the Subsequent New Director or any Replacement shall be required to resign from the Board.
(e) For purposes of Section 2(b)(i) and Section 2(d) above, the parties shall determine the amount of outstanding Common Shares in accordance with Section 13d-1 of the Exchange Act.
Appears in 2 contracts
Samples: Board Governance Agreement (Vitamin Shoppe, Inc.), Agreement (Carlson Capital L P)
Certain Other Matters. (ia) Each Third Point Designee or Replacement New Director shall be entitled to resign from the Board at any time in his or her discretion. For purposes of this Agreement, the “Standstill Period” shall mean the period from the date of this Agreement until the later of (xi) 12:01 a.m. a.m., Eastern time, on the sixtieth (60th) 45th day prior to the advance notice deadline for making director nominations at the Company’s 2015 2017 Annual Meeting, Meeting and (yii) thirty twenty (20) days after such time as none of the Third Point Designees 2017 Class New Director (including any Replacementsor his Replacement, if applicable) are members is no longer a member of the Board; provided, however, that with respect to each succeeding annual meeting of Company shareholders after the 2014 Annual Meeting. If either New Director (or his or her Replacement, if Third Point and applicable) agrees to be included as a director nominee for election at any Stockholders Meeting other than as a director nominated by the Company agree in writing to include the Third Point Designees (or their Replacement) on the Company’s slate of director nominees Board for any annual meeting of Company shareholders after the 2014 Annual election at such Stockholders Meeting, the Standstill Period applicable Resignation previously provided by such New Director shall continue through and including become effective.
(b) The Company agrees that for so long as any New Director (or any Replacement) is on the date of such applicable annual meeting and Board, the Company shall promptly notify Third Point, in writing, as to the Board’s decision whether or not to nominate a New Director (or any Replacement) for election at a Re-election Meeting (which written notice from the Company, if the any, shall in any event be delivered to Third Point Designees are so elected by the shareholders as directors as part of the incumbent Board slate of nominees, then the Standstill Period shall further extend until the not later of than forty-five (x45) 12:01 a.m. on the sixtieth (60th) day days prior to the advance notice deadline for making director nominations at the annual meeting of Company shareholders subsequent to such reRe-election of the Third Point Designees to the Board, Meeting) and (y) thirty days after such time as none of the Third Point Designees (including any Replacements) are members of the Board; provided, further, that if the Third Point Designees are not so elected and do not resign from the Board, the Standstill Period shall continue until thirty days after such time as none of the Third Point Designees (including any Replacements) are members of the Board. Notwithstanding anything to the contrary in this Agreement, during the thirty day period following the resignation of all Third Point Designees, Third Point may take all actions appropriate to prepare and deliver to the Company a notice of director nominations for the upcoming annual meeting, but during such thirty-day period neither Third Point nor the Company shall make any public disclosure that would otherwise be contrary to the terms of this Agreement, except as may be required by law.
(ii) Notwithstanding anything to the contrary in this Section 2(a), the Company agrees that for so long as any of the Third Point Designees (or their Replacements) are on the Board (A) the Board shall promptly notify Third Point in writing of its decision not to nominate any Third Point Designee for election at the 2015 Annual Meeting or any subsequent annual meeting of shareholders (which written notice, if any, shall in any event not be delivered any later than 60 days prior to the advance notice deadline for making director nominations at such upcoming annual meeting), and (B) the Board shall take all appropriate action to (I) provide Third Point with at least a 60-day period from the time Third Point is notified in writing that any of the Third Point Designees have not been so nominated to comply with the advance notice provisions for nominations of directors contained in the Bylaws at such upcoming annual meeting and (II) cause such upcoming annual meeting Re-election Meeting not to be held prior to 90 ninety (90) days following the time Third Point is notified that any of the Third Point Designees a New Director has not been so nominated.
(bc) During the Standstill Period, no member of Third Point shall, directly or indirectly, and each member of Third Point shall cause each Third Point Affiliate not to, directly or indirectly (it being understood and agreed that the following restrictions shall not apply to the Third Point Designees acting solely actions of a New Director in their capacities respect of such New Director’s participation in Board and Board committee meetings (including votes on and discussions regarding matters at such meetings) in such New Director’s capacity as a director of the Company consistent with their fiduciary duties to the Company):
(i) (A) solicit proxies or written consents of stockholders or conduct any other type of referendum (binding or non-bindingnonbinding) with respect to, or from the holders of, the Voting Securities (as defined below), or become a “participant” (as such term is defined in Instruction 3 to Item 4 of Schedule 14A promulgated under the Exchange Act) in or assist any Person not a party to this Agreement (a “Third Party (as defined hereinParty”) in any “solicitation” of any proxy, consent or other authority (as such terms are defined under the Exchange Act) to vote any shares of the Voting Securities (other than such encouragement, advice or influence that is consistent with Company management’s recommendation in connection with such matter), or (B) control or exert influence over or seek to control or exert influence over the voting of any Voting Securities as to which a Third Party that is counterparty to any Net Long Position of Third Point possesses power to vote or direct the voting (other than such control or influence that is consistent with Company management’s recommendation in connection with such matter);
(ii) encourage, advise or influence any other person Person or assist any Third Party in so encouraging, assisting or influencing any person Person with respect to the giving or withholding of any proxy, consent or other authority to vote or in conducting any type of referendum (other than such encouragement, advice or influence that is consistent with Company management’s recommendation in connection with such matter);
(iii) form or join in a partnership, limited partnership, syndicate or other group, including a “group” as defined under Section 13(d) of the Exchange Act, with respect to the Voting Securities (including any Net Long Position) (for the avoidance of doubt, excluding any group composed solely of Third Point and their the Third Point Affiliates) or otherwise support or participate in any effort by a Third Party with respect to the matters set forth in clauses (i), (vii) or (ixviii) hereinof this Section 2(c);
(iv) present at any annual meeting or any special meeting of the Company’s stockholders or through action by written consent any proposal for consideration for action by stockholders or seek the removal of any member of the Board or (except as explicitly expressly permitted by in this Agreement with respect to a Replacement and other than through action at the Board by a Third Point Designee acting in his or her capacity as suchReplacement) propose any nominee for election to the Board or seek representation on the Board;
(v) other than in Rule 144 open (i) market broker sale transactions where the identity of the purchaser is not known known,(ii) underwritten public offerings and in underwritten widely dispersed public offerings(iii) bought deals, sell, offer or agree to sell directly or indirectly, through swap swap, hedging or hedging derivative transactions or otherwise, the any securities of the Company Company, or any rights decoupled from the underlying securities Voting Securities held by Third Point to any person Third Party unless (A) such Third Party is a passive investor that has not filed a Schedule 13D and would not as a result of the purchase of the securities of the Company be required to file a Schedule 13D, and (B) such sale, offer, or entity agreement to sell would not a party to this agreement (a “Third Party”) that would knowingly result in such Third Party, together with its Affiliates, owning, controlling or otherwise having any beneficial or other ownership interest in the aggregate that is the equivalent of five percent (5% %) or more of the shares of Common Stock Voting Securities outstanding at such time or would increase the beneficial or other ownership interest of any Third Party who, together with its Affiliates, has a beneficial or other ownership interest in the aggregate that is the equivalent of five percent (5% %) or more of the shares of Common Stock Voting Securities outstanding at such time, except in each case in a transaction approved in advance by the Board;
(vi) grant any proxy, consent or other authority to vote with respect to any matters (other than to the named proxies included in the Company’s proxy card for any annual meeting or special meeting of stockholdersa Stockholders Meeting) or deposit any Voting Securities of the Company in a voting trust or subject them to a voting agreement or other arrangement of similar effect with respect to any annual meeting Stockholders Meeting except as provided in Section 2(c2(d) below, special meeting of stockholders or action by written consent below (excluding customary brokerage accounts, margin accounts, prime brokerage accounts and the like);
(vii) make any request for stocklist stockholders list materials or other books and records of the Company under Section 220 of the Delaware General Corporation Law or otherwise;
(viii) make, or cause to be made, any statement or announcement that relates to and constitutes an ad hominem attack on, or relates to and otherwise disparages, the Company, its officers or its directors or any person who has served as an officer or director of the Company in the past, or who serves on or following the date of this Agreement as an officer or director of the Company: (i) in any document or report filed with or furnished to the SEC or any other governmental agency, (ii) in any press release or other publicly available format, or (iii) to any analyst, journalist or member of the media (including without limitation, in a television, radio, newspaper or magazine interview) (and the Company agrees that this Section 2(b)(viii) shall apply mutatis mutandis to the Company and its directors and officers with respect to Third Point);
(ix) other than litigation by Third Point to enforce the provisions of this Agreement, institute, solicit, assist solicit or join, as a party, any litigation, arbitration or other proceeding against or involving the Company or any of its Subsidiaries (as defined below) or any of their respective current or former directors or officers (including derivative actions), other than litigation by Third Point to enforce the provisions of this Agreement;
(xix) without the prior written approval of the Board, separately or in conjunction with any other person or entity Person in which it is or proposes to be either a principal, partner or financing source or is acting or proposes to act as broker or agent for compensation, propose (publicly, privately or to the Company) or participate ineffect any merger, effect or seek to effectconsolidation, any business combination, tender offer or exchange offer, mergersale or purchase of assets, acquisitionsale or purchase of securities, dissolution, liquidation, reorganization, restructuring, recapitalization recapitalization, extraordinary dividend, significant share repurchase or other business combination similar transaction of or involving the Company or any of its Affiliates or a material amount of the assets or businesses of the Company (collectively, an “Extraordinary Transaction”) or actively encourage, initiate or support any other Third Party in any such activity; provided;
(x) purchase or cause to be purchased or otherwise acquire or agree to acquire Beneficial Ownership of any Voting Securities (including adding to any Net Long Position and, for purposes of this calculation, including any Synthetic Positions) such that Third Point may commence or participate in and the Third Point Affiliates would collectively beneficially own (including for purposes of this calculation, any tender offer or exchange offer, or a combination thereof, in each such case, that is made for all net long Synthetic Positions as beneficial ownership of the shares associated Voting Securities) more than thirteen percent (13%) of Common Stock the Company’s issued and outstanding Voting Securities at such time at time;
(xi) except as set forth herein, take any action in support of or make any proposal or request that constitutes (A) controlling, changing or influencing the same per-share consideration, the consummation of which is conditioned upon acceptance by a majority Board or management of the outstanding shares Company, including any plans or proposals to change the number or term of Common Stock directors or to fill any vacancies on the Board, (calculated on a fully diluted basis)B) any material change in the capitalization, so long as stock repurchase programs and practices, capital allocation programs and practices or dividend policy of the Company, (C) any other material change in the Company’s management, business or corporate structure or (D) seeking to have the Company and its stockholders receive an irrevocablewaive or make amendments or modifications to the Company’s certificate of incorporation or by-laws;
(xii) enter into any negotiations, legally binding written commitment from agreements, arrangements or understandings with any Third Party with respect to the matters set forth in this Section 2; or
(xiii) request, directly or indirectly, any amendment or waiver of the foregoing in a manner that would be reasonably likely to require public disclosure by Third Point (or such other third party making theany of its Affiliates) or the Company.
Appears in 2 contracts
Samples: Support Agreement (Third Point LLC), Support Agreement (Baxter International Inc)
Certain Other Matters. (ia) Each Third Point The parties acknowledge that an Icahn Designee or Replacement shall be entitled to may resign from the Board at any time in his or her discretionby giving at least forty-five days prior written notice to the Board. For purposes of this Agreement, the “Standstill Period” shall mean the period from From the date of this Agreement until the later of (x) 12:01 a.m. on the sixtieth (60th) day prior to conclusion of the advance notice deadline for making director nominations at the Company’s 2015 Annual Meeting, Meeting and (y) thirty days after the date that no Icahn Designee is a member of the Board (it being understood that if such an Icahn Designee is no longer a member of the Board due to circumstances in which the Icahn Group would be entitled to appoint a Replacement, an Icahn Designee shall be deemed to continue to be a member of the Board for all purposes of this Agreement until such time as none the Icahn Group irrevocably waives in writing any right to designate such a Replacement or appoints such a Replacement (the “Replacement Waiver”); provided that if an Icahn Designee resigns and fails to give at least forty-five days prior notice to the Board of such resignation, an Icahn Designee shall be deemed to continue to be a member of the Third Point Designees (including any ReplacementsBoard for purposes of this Section 2(a) are members of this Agreement until the Board; provided, however, that with respect to each succeeding annual meeting of Company shareholders after the 2014 Annual Meeting, if Third Point and the Company agree in writing to include the Third Point Designees (or their Replacement) on the Company’s slate of director nominees for any annual meeting of Company shareholders after the 2014 Annual Meeting, the Standstill Period shall continue through and including the date of such applicable annual meeting and if the Third Point Designees are so elected by the shareholders as directors as part of the incumbent Board slate of nominees, then the Standstill Period shall further extend until forty-fifth day following the later of (x) 12:01 a.m. on the sixtieth (60th) day prior to the advance notice deadline for making director nominations at the annual meeting effective date of Company shareholders subsequent to such re-election of the Third Point Designees to the Board, resignation and (y) thirty days after such time as none the date of the Third Point Designees Replacement Waiver) (including any Replacements) are members of the Board; provided, further, that if the Third Point Designees are not so elected and do not resign from the Boardsuch period, the Standstill Period shall continue until thirty days after such time as none of the Third Point Designees (including any Replacements) are members of the Board. Notwithstanding anything to the contrary in this Agreement, during the thirty day period following the resignation of all Third Point Designees, Third Point may take all actions appropriate to prepare and deliver to the Company a notice of director nominations for the upcoming annual meeting, but during such thirty-day period neither Third Point nor the Company shall make any public disclosure that would otherwise be contrary to the terms of this Agreement, except as may be required by law.
(ii) Notwithstanding anything to the contrary in this Section 2(a“Board Representation Period”), the Company agrees that for so long as any the Company has not materially breached this Agreement and failed to cure such breach within five business days of the Third Point Designees (or their Replacements) are on the Board (A) the Board shall promptly notify Third Point in writing of its decision not to nominate any Third Point Designee for election at the 2015 Annual Meeting or any subsequent annual meeting of shareholders (which written notice, if any, shall in any event not be delivered any later than 60 days prior to the advance notice deadline for making director nominations at such upcoming annual meeting), and (B) the Board shall take all appropriate action to (I) provide Third Point with at least a 60-day period from the time Third Point is notified in writing that Icahn Group specifying any of the Third Point Designees have not been so nominated to comply with the advance notice provisions for nominations of directors contained in the Bylaws at such upcoming annual meeting and (II) cause such upcoming annual meeting not to be held prior to 90 days following the time Third Point is notified that any of the Third Point Designees has not been so nominated.
(b) During the Standstill Periodbreach, no member of Third Point the Icahn Group shall, directly or indirectly, and each member of Third Point the Icahn Group shall cause each Third Point Icahn Affiliate not to, directly or indirectly (it being understood and agreed that the following restrictions shall not apply to the Third Point Designees acting any Icahn Designee or Replacement solely in their capacities such person’s capacity as a director of the Company consistent with their fiduciary duties to the Company):
(i) solicit proxies or written consents of stockholders shareholders or conduct any other type of referendum (binding or non-binding) with respect to, or from the holders of, the Voting Securities (as defined below), or become a “participant” (as such term is defined in Instruction 3 to Item 4 of Schedule 14A promulgated under the Exchange Act) in or assist any Third Party (as defined herein) third party in any “solicitation” of any proxy, consent or other authority (as such terms are defined under the Exchange ActAct or applicable Canadian law) to vote or withhold from voting any shares of the Voting Securities (other than such encouragement, advice or influence that is consistent with Company management’s recommendation in connection with such matter);
(ii) encourage, advise or influence any other person or assist any Third Party third party in so encouraging, assisting or influencing any person with respect to the giving or withholding of any proxy, consent or other authority to vote or in conducting any type of referendum (other than such encouragement, advice or influence that is consistent with Company management’s recommendation in connection with such matter);
(iii) form or join in a partnership, limited partnership, syndicate or other group, including a “group” group as defined under Section 13(d) of the Exchange Act, with respect to the Voting Securities (for the avoidance of doubtSecurities, excluding any group composed solely of Third Point and their Affiliates) or otherwise support or participate in any effort by a Third Party third party with respect to the matters set forth in clauses clause (i), (vii) or (ix) hereinabove;
(iv) other than through action at the Board by an Icahn Designee acting in his or her capacity as a director of the Company, present (or request to present) at any annual meeting or any special meeting of the Company’s stockholders shareholders or through action by written consent any proposal for consideration for action by stockholders or seek the removal of any member of the Board shareholders or (except as explicitly permitted by this Agreement with respect to a Replacement and other than through action at the Board by a Third Point Designee acting in his or her capacity as suchAgreement) propose (or request to propose) any nominee for election to the Board or seek representation on the Board or the removal of any member of the Board;
(v) other than in Rule 144 open market broker sale transactions where the identity requisition or seek to requisition any meeting of the purchaser is not known and in underwritten widely dispersed public offerings, sell, offer or agree to sell directly or indirectly, through swap or hedging transactions or otherwise, the securities Company’s shareholders under Section 143 of the Company or any rights decoupled from the underlying securities held by Third Point to any person or entity not a party to this agreement (a “Third Party”) that would knowingly result in such Third Party, together with its Affiliates, owning, controlling or otherwise having any beneficial or other ownership interest in the aggregate of 5% or more of the shares of Common Stock outstanding at such time or would increase the beneficial or other ownership interest of any Third Party who, together with its Affiliates, has a beneficial or other ownership interest in the aggregate of 5% or more of the shares of Common Stock outstanding at such time, except in each case in a transaction approved by the BoardCBCA;
(vi) grant any proxy, consent or other authority to vote with respect to any matters (other than to the named proxies included in the Company’s proxy card for any annual meeting or special meeting of stockholdersshareholders) or deposit any Voting Securities of the Company in a voting trust or subject them to a voting agreement or other arrangement of similar effect with respect to any (x) annual meeting except as provided in Section 2(cof shareholders, (y) below, special meeting of stockholders shareholders or (z) action by written consent (excluding customary brokerage accounts, margin accounts, prime brokerage accounts and the like), in each case, except as provided in Section 2(b) below;
(vii) make any request for stocklist materials or other books and records application under Sections 21, 138, 144, 229, 239 or 241 of the Company under Section 220 of the Delaware General Corporation Law or otherwiseCBCA;
(viii) make, or cause to be made, by press release or similar public statement to the press or media (including social media), or in an SEC filing, any statement or announcement that relates to and constitutes an ad hominem attack on, or relates to and otherwise disparages, disparages (as distinct from objective statements reflecting business criticism) the Company, its officers or its directors or any person who has served as an officer or director of the Company in the past, or who serves on or following the date of this Agreement as an officer or director of the Company: (i) in any document or report filed with or furnished to the SEC or any other governmental agency, (ii) in any press release or other publicly available format, or (iii) to any analyst, journalist or member of the media (including without limitation, in a television, radio, newspaper or magazine interview) (and the Company agrees that this Section 2(b)(viii) shall apply mutatis mutandis to the Company and its directors and officers with respect to Third Point)past ;
(ix) other than litigation by Third Point to enforce the provisions of this Agreement, institute, solicit, assist or join, as a party, any litigation, arbitration or other proceeding against or involving the Company or any of its current or former directors or officers (including derivative actions)) other than to enforce the provisions of this Agreement;
(x) without acquire Beneficial Ownership of Voting Securities that would equal or exceed (in the prior approval aggregate with all other members of the Board, separately or in conjunction with Icahn Group and all Icahn Affiliates) the greater of (x) 20% of the then total outstanding shares of any class of any Voting Securities and (y) the percentage of the then total outstanding Voting Securities acquired by any other person or entity Person under circumstances in which the Board has waived or carved out by exception or similar devices the applicability of any Rights Plan (as hereafter defined) currently in effect or which the Company hereafter adopts to such Person’s acquisition of the Voting Securities (and the Company hereby does, and agrees that it shall, provide the same waiver, carve out, exception or similar device for the Icahn Group and its Affiliates). The term “Rights Plan” shall mean any plan or arrangement of the sort commonly referred to as a “rights plan” or “stockholder rights plan” or “shareholder rights plan” or “poison pill” that is designed to increase the cost to a potential acquirer of exceeding the applicable ownership thresholds either through the issuance of new rights, common shares or proposes preferred shares (or any other security or device that may be issued to be either a principal, partner or financing source or is acting or proposes shareholders of the Company other than ratably to act as broker or agent for compensation, propose (publicly, privately or to all shareholders of the Company) that carry severe redemption provisions, favorable purchase provisions or participate inotherwise, effect or seek to effect, and any tender offer or exchange offer, merger, acquisition, reorganization, restructuring, recapitalization or other business combination involving the Company or a material amount of the assets or businesses of the Company (collectively, an “Extraordinary Transaction”) or encourage, initiate or support any other Third Party in any such activity; provided, that Third Point may commence or participate in any tender offer or exchange offer, or a combination thereof, in each such case, that is made for all of the shares of Common Stock outstanding at such time at the same per-share consideration, the consummation of which is conditioned upon acceptance by a majority of the outstanding shares of Common Stock (calculated on a fully diluted basis), so long as the Company and its stockholders receive an irrevocable, legally binding written commitment from Third Point (or such other third party making therelated rights agreement;
Appears in 1 contract
Samples: Nomination and Standstill Agreement (Talisman Energy Inc)
Certain Other Matters. (i1) Each Third Point Designee or Replacement shall be entitled to The parties acknowledge that the Sagard Capital Nominee may resign from the Board at any time in his or her discretion. For purposes of this Agreement, the “Standstill Period” shall mean the period from From the date of this Agreement until the later of (x) 12:01 a.m. on the sixtieth earlier of (60thA) day prior to the advance notice deadline for making director nominations conclusion of the 2016 Annual Meeting and (B) the date that the Sagard Capital Nominee is not elected at any annual general meeting of shareholders of the Company’s 2015 Annual Meeting, Company or at any special meeting of shareholders of the Company at which directors may be elected and (y) thirty days after the date that the Sagard Capital Nominee is no longer a member of the Board (it being understood that (i) if the Sagard Capital Nominee is no longer a member of the Board due to circumstances in which Sagard Capital would be entitled to appoint a Replacement, the Sagard Capital Nominee shall be deemed to continue to be a member of the Board for all purposes of this Agreement until such time as none Sagard Capital irrevocably waives in writing any right to designate such a Replacement or appoints such a Replacement (the “Replacement Waiver”); (ii) if the Sagard Capital Nominee resigns and fails to give at least forty-five (45) days prior notice to the Board of such resignation, the Sagard Capital Nominee shall be deemed to continue to be a member of the Third Point Designees (including any ReplacementsBoard for purposes of this Section 2(1) are members of this Agreement until the Board; provided, however, that with respect to each succeeding annual meeting of Company shareholders after the 2014 Annual Meeting, if Third Point and the Company agree in writing to include the Third Point Designees (or their Replacement) on the Company’s slate of director nominees for any annual meeting of Company shareholders after the 2014 Annual Meeting, the Standstill Period shall continue through and including the date of such applicable annual meeting and if the Third Point Designees are so elected by the shareholders as directors as part of the incumbent Board slate of nominees, then the Standstill Period shall further extend until forty-fifth day following the later of (x) 12:01 a.m. on the sixtieth effective date of such resignation and (60thy) day prior to the advance notice deadline for making director nominations at date of the Replacement Waiver); and (iii) in respect of the annual meeting of Company shareholders subsequent to such re-election of the Third Point Designees Company occurring in the calendar year ending December 31, 2017 or at any annual meeting of shareholders occurring thereafter, if Xxx Xxxxxxxxx is no longer a director, officer, partner, member, employee or agent of Sagard Capital or the Sagard Capital Affiliates at such time, and Sagard Capital notifies the Company no less than forty-five (45) days before the applicable advance notice deadline, as provided for in the Company’s Articles, that it does not intend to nominate a Sagard Capital Nominee pursuant to Section 1(1)(f), but the Board, in its sole discretion, includes Xxx Xxxxxxxxx in its slate of nominees for election to the Board, and (yXxx Xxxxxxxxx shall no longer be considered to be the Sagard Capital Nominee for purposes of this Section 2(1) thirty days after such time as none of the Third Point Designees (including any Replacements) are members date of the Board; provided, further, that if the Third Point Designees are not so elected and do not resign from the Board, the Standstill Period shall continue until thirty days after such time as none of the Third Point Designees (including any Replacements) are members of the Board. Notwithstanding anything to the contrary in this Agreement, during the thirty day period following the resignation of all Third Point Designees, Third Point may take all actions appropriate to prepare and deliver to the Company a notice of director nominations for the upcoming annual meeting, but during such thirty-day period neither Third Point nor the Company shall make any public disclosure that would otherwise be contrary to the terms of this Agreement, except as may be required by law.
(ii) Notwithstanding anything to the contrary in this Section 2(a), the Company agrees that for so long as any of the Third Point Designees (or their Replacements) are on the Board (A) the Board shall promptly notify Third Point in writing of its decision not to nominate any Third Point Designee for election at the 2015 Annual Meeting or any subsequent applicable annual meeting of shareholders of the Company (which written noticesuch period, if any, shall in any event not be delivered any later than 60 days prior to the advance notice deadline for making director nominations at such upcoming annual meeting“Board Representation Period”)), so long as the Company has not materially breached this Agreement and failed to cure such breach within five (B5) the Board shall take all appropriate action to (I) provide Third Point with at least a 60-day period from the time Third Point is notified in writing that any of the Third Point Designees have not been so nominated to comply with the advance notice provisions for nominations of directors contained in the Bylaws at such upcoming annual meeting and (II) cause such upcoming annual meeting not to be held prior to 90 business days following the time Third Point is notified that receipt by it of written notice from Sagard Capital specifying any of the Third Point Designees has not been so nominated.
(b) During the Standstill Periodsuch breach, no member of Third Point shallSagard Capital shall not, directly or indirectly, and each member of Third Point Sagard Capital shall cause each Third Point Sagard Capital Affiliate not to, directly or indirectly (it being understood and agreed that the following restrictions shall not apply to the Third Point Designees acting Sagard Capital Nominee or Replacement solely in their capacities such person’s capacity as a director of the Company consistent with their fiduciary duties to the Company):
(ia) solicit proxies or written consents of stockholders shareholders or conduct any other type of referendum (binding or non-binding) with respect to, or from the holders of, the Voting Securities (as defined below)Common Shares, or become a “participant” (as such term is defined in Instruction 3 to Item 4 of Schedule 14A promulgated under the Exchange Act) in or assist any Third Party (as defined herein) third party in any “solicitation” of any proxy, consent or other authority (as such terms are defined under the Exchange ActAct or applicable Canadian law) to vote or withhold from voting any shares Common Shares on any matter to be voted upon by shareholders of the Voting Securities Company at any annual meeting or special meeting of shareholders (other than such encouragement, advice or influence that is consistent with Company management’s recommendation in connection with such matter); provided, however, that, except as expressly agreed in Section 2(2), nothing in this clause (a) or otherwise in this Agreement shall restrict or otherwise limit the Sagard Capital Affiliates from voting any voting securities in favor of or against any Extraordinary Transaction (as defined in this Agreement) for which such solicitation is being made;
(iib) encourage, advise or influence any other person or assist any Third Party third party in so encouraging, assisting or influencing any person with respect to the giving or withholding of any proxy, consent or other authority to vote or in conducting any type of referendum on any matter to be voted upon by shareholders of the Company at any annual meeting or special meeting of shareholders (other than such encouragement, advice or influence that is consistent with Company management’s recommendation in connection with such matter); provided, however, that nothing in this clause (b) or otherwise in this Agreement shall restrict or otherwise limit the Sagard Capital Affiliates from voting any voting securities in favor of or against any Extraordinary Transaction;
(iiic) other than with Sagard Capital Affiliates and/or the Sagard Capital Nominee (as holder of equity compensation issued by the Company), form or join in a partnership, limited partnership, syndicate or other group, including a “group” group as defined under Section 13(d) of the Exchange Act, or act jointly or in concert with other persons, as defined under applicable securities laws in Canada, with respect to the Voting Securities (for the avoidance of doubtCommon Shares, excluding any group composed solely of Third Point and their Affiliates) or otherwise support or participate in any effort by a Third Party third party with respect to the matters set forth in clauses clause (i), (viia) or (ix) hereinabove;
(ivd) other than through action at the Board by the Sagard Capital Nominee acting in his or her capacity as a director of the Company, present (or request to present) at any annual meeting or any special meeting of shareholders of the Company’s stockholders or through action by written consent Company any proposal for consideration for action by stockholders or seek the removal of any member shareholders, including under Section 188 of the Board BCBCA, or (except as explicitly permitted by this Agreement with respect to a Replacement and other than through action at the Board by a Third Point Designee acting in his or her capacity as suchAgreement) propose (or request to propose) any nominee for election to the Board or seek representation on the Board;
(v) other than in Rule 144 open market broker sale transactions where Board or the identity of the purchaser is not known and in underwritten widely dispersed public offerings, sell, offer or agree to sell directly or indirectly, through swap or hedging transactions or otherwise, the securities of the Company or any rights decoupled from the underlying securities held by Third Point to any person or entity not a party to this agreement (a “Third Party”) that would knowingly result in such Third Party, together with its Affiliates, owning, controlling or otherwise having any beneficial or other ownership interest in the aggregate of 5% or more of the shares of Common Stock outstanding at such time or would increase the beneficial or other ownership interest removal of any Third Party who, together with its Affiliates, has a beneficial or other ownership interest in the aggregate member of 5% or more of the shares of Common Stock outstanding at such time, except in each case in a transaction approved by the Board;
(vie) requisition or seek to requisition any meeting of the Company’s shareholders under Section 167 of the BCBCA;
(f) grant any proxy, consent or other authority to vote with respect to any matters (other than to the named proxies proxyholders included in the Company’s form of proxy card for any annual meeting or special meeting of stockholdersshareholders of the Company) or deposit any Voting Securities of the Company Common Shares in a voting trust or subject them to a voting agreement (other than this Agreement) or other arrangement of similar effect with respect to any annual meeting except as provided in Section 2(c) below, or special meeting of stockholders or action by written consent shareholders of the Company (excluding customary brokerage accounts, margin accounts, prime brokerage accounts and the like), in each case, except as provided in Section 2(2) below;
(viig) make any request for stocklist materials or other books and records application under Sections 46, 48, 49, 186, 191, 227, 228, 232, 233, 248 or 324 of the Company under Section 220 BCBCA or Part 6 of the Delaware General Corporation Law or otherwiseNational Instrument 54-101 – Communication with Beneficial Owners of Securities of a Reporting Issuer;
(viiih) make, or cause to be made, by press release or similar statement to the public, press or media (including social media), or in an SEC or Canadian securities regulatory filing, any statement or announcement that relates to and constitutes an ad hominem attack on, or relates to and otherwise disparages, disparages the Company, its officers or its directors or any person who has served as an officer or director of the Company in the past, or who serves on or following the date of this Agreement as an officer or director of the Company: ;
(i) in any document or report filed with or furnished to the SEC or any other governmental agency, (ii) in any press release or other publicly available format, or (iii) to any analyst, journalist or member of the media (including without limitation, in a television, radio, newspaper or magazine interview) (and the Company agrees that this Section 2(b)(viii) shall apply mutatis mutandis to the Company and its directors and officers with respect to Third Point);
(ix) other than litigation by Third Point to enforce the provisions of this Agreement, institute, solicit, assist or join, as a party, any litigation, arbitration or other proceeding against or involving the Company or any of its current or former directors or officers (including derivative actions) other than (A) to enforce the provisions of this Agreement or any indemnification rights or indemnification agreement, (B) counterclaims with respect to any proceeding initiated by, or on behalf of, the Company or its Affiliates, or shareholders of the Company, against the Sagard Capital Affiliates or the Sagard Capital Nominee, (C) the exercise of statutory appraisal rights and (D) class actions to which Sagard Capital is a party merely by virtue of owning Common Shares and is not a named plaintiff; provided that the foregoing shall not prevent any Sagard Capital Affiliate from responding to or complying with a validly issued legal process (and the Company agrees that this clause (i) shall apply mutatis mutandis to the Company and its directors, officers, partners, members, employees, agents (in each case, acting in such capacity) and Affiliates with respect to the Sagard Capital Affiliates);
(j) acquire Beneficial Ownership of Common Shares that would equal or exceed (in the aggregate with all members of Sagard Capital and Sagard Capital Affiliates) the greater of (x) without the prior approval 19.9% of the Board, separately or in conjunction with then total issued and outstanding Common Shares and (y) the percentage of the then total issued and outstanding Common Shares acquired by any other person or entity under circumstances in which the Board has waived or carved out by exception or similar device the applicability of any Rights Plan (as defined in this Agreement) currently in effect or which the Company hereafter adopts to such person’s acquisition of the Common Shares (and the Company (i) hereby agrees that it shall not adopt any Rights Plan containing, or amend any Rights Plan to establish, a percentage which would prohibit Sagard Capital and the Sagard Capital Affiliates from acquiring Beneficial Ownership of an amount up to the amount in (x) above and (ii) hereby does, and agrees that it shall provide the same waiver, carve out, exception or similar device for Sagard Capital and Sagard Capital Affiliates). The term “Rights Plan” shall mean any plan or arrangement of the sort commonly referred to as a “rights plan”, “stockholder rights plan”, “shareholder rights plan” or “poison pill” that is designed to increase the cost to a potential acquirer of exceeding the applicable ownership thresholds either through the issuance of new rights, common shares or proposes preferred shares (or any other security or device that may be issued to be either a principal, partner or financing source or is acting or proposes shareholders of the Company other than ratably to act as broker or agent for compensation, propose (publicly, privately or to all shareholders of the Company) that carry severe redemption provisions, favourable purchase provisions or participate inotherwise, and any related rights agreement (provided that (A) this clause (j) shall not be deemed violated due to any such acquisition of Beneficial Ownership which arises due to a decrease in the number of outstanding Common Shares and (B) increases in Beneficial Ownership shall exclude the effect or seek to effect, of any tender offer or exchange offer, merger, acquisition, reorganization, restructuring, recapitalization increase in Beneficial Ownership arising by virtue of issuances of Common Shares or other business combination involving the Company equity securities as compensation to or a material amount on account of the assets or businesses of the Company (collectively, an “Extraordinary Transaction”) or encourage, initiate or support any other Third Party in any such activity; provided, that Third Point may commence or participate in any tender offer or exchange offer, or a combination thereof, in each such case, that is made for all of the shares of Common Stock outstanding at such time at the same per-share consideration, the consummation of which is conditioned upon acceptance by a majority of the outstanding shares of Common Stock (calculated on a fully diluted basisSagard Capital Nominee), so long as the Company and its stockholders receive an irrevocable, legally binding written commitment from Third Point (or such other third party making the;
Appears in 1 contract
Samples: Shareholder Nomination Agreement (Performance Sports Group Ltd.)
Certain Other Matters. (i) Each Third Point Designee or Replacement 7.1 Nothing herein shall be entitled deemed to resign from affect any existing rights or obligations under the Board at any time in his or her discretion. For purposes of this Agreement, the “Standstill Period” shall mean the period from the date of this Agreement until the later of (x) 12:01 a.m. on the sixtieth (60th) day prior to the advance notice deadline for making director nominations at the Company’s 2015 Annual Meeting, and (y) thirty days after such time as none of the Third Point Designees (including any Replacements) are members of the Board; provided, however, that with respect to each succeeding annual meeting of Company shareholders after the 2014 Annual Meeting, if Third Point and the Company agree in writing to include the Third Point Designees (or their Replacement) on the Company’s slate of director nominees for any annual meeting of Company shareholders after the 2014 Annual Meeting, the Standstill Period shall continue through and including the date of such applicable annual meeting and if the Third Point Designees are so elected GTIS Warrants held by the shareholders as directors as part of Midway Entities and any registration rights agreement between the incumbent Board slate of nominees, then the Standstill Period shall further extend until the later of (x) 12:01 a.m. on the sixtieth (60th) day prior to the advance notice deadline for making director nominations at the annual meeting of Company shareholders subsequent to such re-election of the Third Point Designees to the Board, and (y) thirty days after such time as none of the Third Point Designees (including any Replacements) are members of the Board; provided, further, that if the Third Point Designees are not so elected and do not resign from the Board, the Standstill Period shall continue until thirty days after such time as none of the Third Point Designees (including any Replacements) are members of the Board. Notwithstanding anything to the contrary in this Agreement, during the thirty day period following the resignation of all Third Point Designees, Third Point may take all actions appropriate to prepare and deliver to the Company a notice of director nominations for the upcoming annual meeting, but during such thirty-day period neither Third Point nor the Company shall make any public disclosure that would otherwise be contrary to the terms of this Agreementparties pertaining thereto, except as may be required by law.
(ii) Notwithstanding anything to the contrary in this Section 2(a), the Company agrees that for so long as any of the Third Point Designees (or their Replacements) are on the Board (A) the Board shall promptly notify Third Point in writing of its decision not to nominate any Third Point Designee for election at the 2015 Annual Meeting or any subsequent annual meeting of shareholders (which written notice, if any, shall in any event not be delivered any later than 60 days prior to the advance notice deadline for making director nominations at such upcoming annual meeting), and (B) the Board shall take all appropriate action to (I) provide Third Point with at least a 60-day period from the time Third Point is notified in writing that any of the Third Point Designees have not been so nominated to comply with the advance notice provisions for nominations of directors contained in the Bylaws at such upcoming annual meeting and (II) cause such upcoming annual meeting not to be held prior to 90 days following the time Third Point is notified that any of the Third Point Designees has not been so nominated.
(b) During the Standstill Period, no member of Third Point shall, directly or indirectly, and each member of Third Point shall cause each Third Point Affiliate not to, directly or indirectly (it being understood and agreed that the following restrictions shall not apply to the Third Point Designees acting solely in their capacities as a director of the Company consistent with their fiduciary duties to the Company):
(i) solicit proxies or written consents of stockholders or conduct Midway Entities release any other type of referendum (binding or non-binding) with respect to, or from the holders of, the Voting Securities (as defined below), or become a “participant” (as such term is defined in Instruction 3 to Item 4 of Schedule 14A promulgated under the Exchange Act) in or assist any Third Party (as defined herein) in any “solicitation” of any proxy, consent or other authority (as such terms are defined under the Exchange Act) to vote any shares of the Voting Securities (other than such encouragement, advice or influence that is consistent with Company management’s recommendation in connection with such matter);
(ii) encourage, advise or influence any other person or assist any Third Party in so encouraging, assisting or influencing any person and all existing claims with respect to the giving Warrants consistent with the Release provided in Exhibit B-2 hereto.
7.2 GTIS agrees that all Licensed Products sold by it during the Sell Off Periods under Existing License Agreements shall continue to be of high quality and shall be sold and distributed only in packaging (and using advertisements, labels and promotional materials) heretofore prescribed and approved by the Midway Entities. Such Licensed Products (and advertisements, labels and promotional materials) shall also bear the trademarks and trade names of the Midway Entities and contain such trademark and copyright notices as are prescribed under the Existing License Agreements. The Midway Entities agree that all licensed products sold by them, as licensee, during the sell off periods under any license agreements with GTIS, as licensor, shall continue to be of high quality and shall be sold and distributed only in packaging (and using advertisements, labels and promotional materials) heretofore prescribed and approved by GTIS. Neither GTIS nor the Midway Entities shall have any further obligations under any license agreement to furnish any artwork or withholding provide translations in connection with the products being sold during any Sell Off Periods. Neither party shall have any further obligations to indemnify the other party with respect to any third party claim, demand, suit or judgment arising in connection with the Existing License Agreements, except as set forth herein. There shall be no bundling of Licensed Products by GTIS during the Sell-off Periods (GTIS shall have the opportunity to cure any breach of the foregoing covenant within 15 days following written notice thereof from the Midway Entities) and all sales of Licensed products by GTIS during the Sell-off Periods shall comply with the applicable laws of all relevant jurisdictions. Anything in this Settlement Agreement to the contrary notwithstanding, however, GTIS acknowledges that none of the Midway Entities shall have any continuing obligation under any of the Master Agreements or the Existing License Agreements which requires that the Midway Entities make any further payments of any proxykind or nature to GTIS or to account to GTIS with respect to any matter, consent including any obligation to pay over any portion of net profits or net proceeds with respect to any Licensed Products or to allow any participation in the exploitation of any ancillary rights with respect to any Licensed Property.
7.3 Those agreements between GTIS and one or more of the Midway Entities which are listed in Section I of Schedule 6 hereto are hereby terminated and of no further force and effect and no party thereto shall have any further rights or obligations to the other authority party thereunder.
7.4 GTIS will have sole responsibility for dealing with any third parties with whom GTIS has contractual arrangements relating to vote any Licensed Products, including without limitation GTIS' sublicensees and subdistributors. GTIS shall defend, indemnify and hold harmless the Midway Entities from any loss, damage, expense or in conducting cost (including reasonable attorneys' fees) arising out of any type claim, demand, suit or judgment by any third parties (a) relating to the termination of referendum such contractual arrangements or otherwise, or (b) resulting from any act or omission by GTIS which would constitute a breach of any Existing License Agreement (other than such encouragement, advice solely as a consequence of an act or influence that is consistent omission by the Midway Entities as licensor). The Midway Entities will have sole responsibility for dealing with Company management’s recommendation in connection any third parties with such matter);
(iii) form or join in a partnership, limited partnership, syndicate or other groupwhom the Midway Entities have contractual arrangements relating to any Licensed Products, including a “group” as defined under Section 13(dwithout limitation the Midway Entities' licensors and developers. The Midway Entities shall defend, indemnify and hold harmless the GTIS from any loss, damage, expense or cost (including reasonable attorneys' fees) arising out of the Exchange Actany claim, with respect demand, suit or judgment by any third parties (a) relating to the Voting Securities (for the avoidance termination of doubt, excluding any group composed solely of Third Point and their Affiliates) or otherwise support or participate in any effort by a Third Party with respect to the matters set forth in clauses (i), (vii) or (ix) herein;
(iv) present at any annual meeting or any special meeting of the Company’s stockholders or through action by written consent any proposal for consideration for action by stockholders or seek the removal of any member of the Board or (except as explicitly permitted by this Agreement with respect to a Replacement and other than through action at the Board by a Third Point Designee acting in his or her capacity as such) propose any nominee for election to the Board or seek representation on the Board;
(v) other than in Rule 144 open market broker sale transactions where the identity of the purchaser is not known and in underwritten widely dispersed public offerings, sell, offer or agree to sell directly or indirectly, through swap or hedging transactions such contractual arrangements or otherwise, or (b) resulting from any act or omission by the securities Midway Entities (other than solely as a consequence of an act or omission by GTIS as sublicensee) which would constitute a breach of any Existing License Agreement.
7.5 This Settlement Agreement constitutes a consensual settlement of disputed issues and, accordingly, nothing herein shall be construed as an admission of wrongdoing by any party.
7.6 Within seven (7) days after the Company or execution of this Settlement Agreement, each party shall return to the producing party any rights decoupled from documents produced in the underlying securities held by Third Point to Pending Litigations, including all copies thereof.
7.7 Each party hereto agrees that it shall not voluntarily assist any person or entity not a in litigation with any other party to this agreement (a “Third Party”) that would knowingly result in such Third PartySettlement Agreement by, together with its Affiliates, owning, controlling or otherwise having any beneficial or other ownership interest in the aggregate of 5% or more of the shares of Common Stock outstanding at such time or would increase the beneficial or other ownership interest of any Third Party who, together with its Affiliates, has a beneficial or other ownership interest in the aggregate of 5% or more of the shares of Common Stock outstanding at such time, except in each case in a transaction approved by the Board;
(vi) grant any proxy, consent or other authority to vote with respect to any matters (other than to the named proxies included in the Company’s proxy card for any annual meeting or special meeting of stockholders) or deposit any Voting Securities of the Company in a voting trust or subject them to a voting agreement or other arrangement of similar effect with respect to any annual meeting except as provided in Section 2(c) below, special meeting of stockholders or action by written consent (excluding customary brokerage accounts, margin accounts, prime brokerage accounts and the like);
(vii) make any request for stocklist materials or other books and records of the Company under Section 220 of the Delaware General Corporation Law or otherwise;
(viii) make, or cause to be made, any statement or announcement that relates to and constitutes an ad hominem attack on, or relates to and otherwise disparages, the Company, its officers or its directors or any person who has served as an officer or director of the Company in the past, or who serves on or following the date of this Agreement as an officer or director of the Company: (i) in any document or report filed with or furnished to the SEC or any other governmental agency, (ii) in any press release or other publicly available format, or (iii) to any analyst, journalist or member of the media (including without limitation, in a televisionproviding documents to such person or entity, radio, newspaper or magazine interview) (and the Company agrees that this Section 2(b)(viii) shall apply mutatis mutandis except to the Company and its directors and officers with respect extent that such assistance or documentation is required to Third Point);
(ix) other than litigation be provided by Third Point such party under the terms of any existing contractual agreements to enforce the provisions of this Agreement, institute, solicit, assist which such party is a party or join, as a party, any litigation, arbitration or other proceeding against or involving the Company or any of its current or former directors or officers (including derivative actions);
(x) without the prior approval of the Board, separately or in conjunction with any other person or entity in by which it is bound. Nothing herein shall be deemed to prevent cooperation or proposes to be either a principalthe furnishing of any documents or assistance at the request of, partner or financing source in connection with any investigation, or is acting or proposes to act as broker or agent for compensation, propose (publicly, privately or to the Company) or participate in, effect or seek to effectprosecution by, any tender offer governmental authority, judicial or exchange offer, merger, acquisition, reorganization, restructuring, recapitalization administrative agency or other business combination involving the Company pursuant to legal process or a material amount of the assets or businesses of the Company (collectively, an “Extraordinary Transaction”) or encourage, initiate or support any other Third Party in any such activity; provided, that Third Point may commence or participate in any tender offer or exchange offer, or a combination thereof, in each such case, that is made for all of the shares of Common Stock outstanding at such time at the same per-share consideration, the consummation of which is conditioned upon acceptance by a majority of the outstanding shares of Common Stock (calculated on a fully diluted basis), so long as the Company and its stockholders receive an irrevocable, legally binding written commitment from Third Point (or such other third party making thecourt order.
Appears in 1 contract
Certain Other Matters. (ia) Each Third Point Designee or Replacement shall be entitled to resign from the Board at any time in his or her discretion. For purposes of this Agreement, the “Standstill Period” shall mean the period from the date of this Agreement until the later of (x) 12:01 a.m. on the sixtieth forty-fifth (60th45th) day prior to the advance notice deadline for making director nominations at the Company’s 2015 2016 Annual Meeting. If any Designee agrees to be included as a director nominee for election at any Stockholders Meeting other than as a director nominated by the Board for election at such Stockholders Meeting, and the irrevocable resignation provision set forth in the Nominee Letter previously provided by such Designee shall become effective.
(yb) thirty days after such time The Company agrees that for so long as none any of the Designees are on the Board, Third Point Designees (including any Replacements) are members may request notice from the Company as to whether the Board intends to nominate each Designee for election at the 2016 Annual Meeting and the Company shall notify Third Point in writing of the Board; provided, however, that its then-current intentions with respect to each succeeding annual meeting the nomination of such Designee for election at the 2016 Annual Meeting (which written notice from the Company shareholders after the 2014 Annual Meeting, if shall be delivered to Third Point and the Company agree in writing to include the Third Point Designees (or their Replacement) on the Company’s slate of director nominees for any annual meeting of Company shareholders after the 2014 Annual Meeting, the Standstill Period shall continue through and including the date of such applicable annual meeting and if the Third Point Designees are so elected by the shareholders as directors as part of the incumbent Board slate of nominees, then the Standstill Period shall further extend until the later of forty-five (x45) 12:01 a.m. on the sixtieth (60th) day days prior to the advance notice deadline for making director nominations at the annual meeting Company’s 2016 Annual Meeting or ten business days following the Company’s receipt of Company shareholders subsequent to such re-election of request from Third Point). In the event that the Company’s notifies Third Point Designees pursuant to the Board, and (y) thirty days after such time as none of the Third Point Designees (including any Replacements) are members of the Board; provided, further, that if the Third Point Designees are not so elected and do not resign from the Board, the Standstill Period shall continue until thirty days after such time as none of the Third Point Designees (including any Replacements) are members of the Board. Notwithstanding anything to the contrary in this Agreement, during the thirty day period following the resignation of all Third Point Designees, Third Point may take all actions appropriate to prepare and deliver to the Company a notice of director nominations for the upcoming annual meeting, but during such thirty-day period neither Third Point nor the Company shall make any public disclosure that would otherwise be contrary to the terms of this Agreement, except as may be required by law.
(ii) Notwithstanding anything to the contrary in this Section 2(a), the Company agrees that for so long as any of the Third Point Designees (or their Replacements) are on the Board (A) the Board shall promptly notify Third Point in writing immediately preceding sentence of its decision not intent to nominate any Third Point a Designee for election at the 2015 2016 Annual Meeting or any subsequent annual meeting Meeting, the Company shall so nominate such Designee (including recommending that the Company’s stockholders vote in favor of shareholders the election of the Designees (along with all other Company nominees) and otherwise supporting each of them for election in a manner no less rigorous and favorable than the manner in which written notice, if any, shall the Company supports its other nominees in any event not be delivered any later than 60 days prior to the advance notice deadline for making director nominations at such upcoming annual meetingaggregate), and unless (Bi) the Board shall take all appropriate action determines, based on the advice of outside counsel, that it is required as a result of its fiduciary duties not to make such nomination, (Iii) provide such Designee resigns from his position as a director of the Company or (iii) Third Point with at least a 60-day period from the time or any Third Point is notified in writing that Affiliate takes any of the Third Point Designees have not been so nominated actions referenced in Section 2(c)(i), (iv) and, solely as it relates to comply with the advance notice provisions for nominations of directors contained action referenced in the Bylaws at such upcoming annual meeting and clause (IIi) cause such upcoming annual meeting not to be held prior to 90 days following the time Third Point is notified that any of the Third Point Designees has not been so nominatedor (iv), clause (iii).
(bc) During the Standstill Period, no member of Third Point shall, directly or indirectlyindirectly (it being understood that any actions taken by Xxxxxx X. Xxxx shall be deemed to be actions taken by Third Point), and each member of Third Point shall cause each Third Point Affiliate (as defined below) it controls and Xxxxxx X. Xxxx not to, directly or indirectly (it being understood and agreed that the following restrictions shall not apply to the Third Point Designees acting solely in their capacities as a director of the Company consistent with their fiduciary duties to the Company):indirectly:
(i) solicit proxies or written consents of stockholders or conduct any other type of referendum (binding or non-binding) with respect to, or from the holders of, the Voting Securities (as defined below), or become a “participant” (as such term is defined in Instruction 3 to Item 4 of Schedule 14A promulgated under the Securities Exchange Act of 1934, as amended (the “Exchange Act”)) in or assist any person or entity not a party to this agreement (a “Third Party (as defined hereinParty”) in any “solicitation” of any proxy, consent or other authority (as such terms are defined under the Exchange Act) to vote any shares of the Voting Securities (other than such encouragement, advice or influence that is consistent with Company management’s recommendation in connection with such matter);
(ii) encourage, advise or influence any other person or assist any Third Party in so encouraging, assisting or influencing any person with respect to the giving or withholding of any proxy, consent or other authority to vote or in conducting any type of referendum (other than such encouragement, advice or influence that is consistent with Company management’s recommendation in connection with such matter);
(iii) form or join in a partnership, limited partnership, syndicate or other group, including a “group” as defined under Section 13(d) of the Exchange Act, with respect to the Voting Securities (for the avoidance of doubt, excluding any group composed solely of Third Point and their Affiliates) or otherwise support or participate in any effort by a Third Party with respect to the matters set forth in clauses (i), (vii) or (ix) herein;
(iv) present at any annual meeting or any special meeting of the Company’s stockholders or through action by written consent any proposal for consideration for action by stockholders or seek the removal of any member of the Board or (except as explicitly permitted by this Agreement with respect to a Replacement and other than through action at the Board by a Third Point Designee acting in his or her capacity as such) propose any nominee for election to the Board or seek representation on the Board;
(v) other than in Rule 144 open market broker sale transactions where the identity of the purchaser is not known and in underwritten widely dispersed public offerings, sell, offer or agree to sell directly or indirectly, through swap or hedging transactions or otherwise, the securities of the Company or any rights decoupled from the underlying securities held by Third Point to any person Third Party unless (A) such Third Party is a passive investor that has not filed a Schedule 13D and would not as a result of the purchase of the securities of the Company be required to file a Schedule 13D and (B) such sale, offer, or entity agreement to sell would not a party to this agreement (a “Third Party”) that would knowingly result in such Third Party, together with its Affiliates, owning, controlling or otherwise having any beneficial or other ownership interest in the aggregate of 59.9% or more of the shares of Common Stock outstanding at such time or would increase the beneficial or other ownership interest of any Third Party who, together with its Affiliates, has a beneficial or other ownership interest in the aggregate of 59.9% or more of the shares of Common Stock outstanding at such time, except in each case in a transaction approved by the Board;
(vi) grant any proxy, consent or other authority to vote with respect to any matters (other than to the named proxies included in the Company’s proxy card for any annual meeting or special meeting of stockholders) or deposit any Voting Securities of the Company in a voting trust or subject them to a voting agreement or other arrangement of similar effect with respect to any annual meeting except as provided in Section 2(c2(d) below, special meeting of stockholders or action by written consent (excluding customary brokerage accounts, margin accounts, prime brokerage accounts and the like);
(vii) make any request for stocklist materials or other books and records of the Company under Section 220 of the Delaware General Corporation Law or otherwise;
(viii) make, or cause to be made, any statement or announcement that relates to and constitutes an ad hominem attack on, or relates to and otherwise disparages, the CompanyCompany or its business, operations or financial performance, its officers or its directors or any person who has served as an officer or director of the Company in the past, or who serves on or following the date of this Agreement as an officer officer, director or director agent of the Company: (iA) in any document or report filed with or furnished to the SEC or any other governmental agency, (iiB) in any press release or other publicly available format, or (iiiC) to any analyst, journalist or member of the media (including without limitation, in a television, radio, internet, newspaper or magazine interview) (and the Company agrees that this Section 2(b)(viii2(c)(viii) shall apply mutatis mutandis to the Company and its directors and officers with respect to Third Point);
(ix) other than litigation by Third Point to enforce the provisions of this Agreement, institute, solicit, assist solicit or join, as a party, any litigation, arbitration or other proceeding against or involving the Company or any of its current or former directors or officers (including derivative actions), other than (A) litigation by Third Point to enforce the provisions of this Agreement, (B) counterclaims with respect to any proceeding initiated by, or on behalf of, the Company or its Affiliates against Third Point or a Designee and (C) the exercise of statutory appraisal rights; provided that the foregoing shall not prevent any member of Third Point from responding to or complying with a validly issued legal process (and the Company agrees that this Section 2(c)(ix) shall apply mutatis mutandis to the Company and its directors and officers with respect to Third Point);
(x) without the prior written approval of the Board, separately or in conjunction with any other person or entity in which it is or proposes to be either a principal, partner or financing source or is acting or proposes to act as broker or agent for compensation, propose (publicly, privately or to the Company) or participate in, effect or seek to effect, any tender offer or exchange offer, merger, acquisition, reorganization, restructuring, recapitalization or other business combination involving the Company or a material amount of the assets or businesses of the Company (collectively, an “Extraordinary Transaction”) or actively encourage, initiate or support any other Third Party in any such activity; provided;
(xi) purchase or cause to be purchased or otherwise acquire or agree to acquire Beneficial Ownership of any Voting Securities, that Third Point may commence or participate if in any tender offer or exchange offer, or a combination thereof, in each such case, immediately after the taking of such action, Third Point would, in the aggregate, collectively beneficially own, or have an economic interest in, an amount that is made for all would exceed 4.99% of the shares of Common Stock outstanding at such time at the same per-share consideration, the consummation of which is conditioned upon acceptance by a majority of the then outstanding shares of Common Stock Stock;
(calculated on xii) enter into any negotiations, agreements, arrangements or understandings with any Third Party with respect to the matters set forth in this Section 2; or
(xiii) request, directly or indirectly, any amendment or waiver of the foregoing in a fully diluted basis), so long as the Company and its stockholders receive an irrevocable, legally binding written commitment from manner that would be reasonably likely to require public disclosure by Third Point (or such other third party making thethe Company.
Appears in 1 contract
Certain Other Matters. (ia) Each Third Point The parties acknowledge that an Icahn Designee or Replacement shall be entitled to may resign from the Board at any time in his or her discretionby giving at least twenty-five (25) calendar days prior written notice to the Board. For purposes of this Agreement, the “Standstill Period” shall mean the period from From the date of this Agreement until the later of (x) 12:01 a.m. on the sixtieth (60th) day prior to conclusion of the advance notice deadline for making director nominations at the Company’s 2015 Annual Meeting, Meeting and (y) thirty days after the date that no Icahn Designee is a member of the Board (it being understood that if such an Icahn Designee is no longer a member of the Board due to circumstances in which the Icahn Group would be entitled to appoint a Replacement, an Icahn Designee shall be deemed to continue to be a member of the Board for all purposes of this Agreement until such time as none the Icahn Group irrevocably waives in writing any right to designate such a Replacement or appoints such a Replacement (the “Replacement Waiver”); provided that if an Icahn Designee resigns and fails to give at least twenty-five (25) calendar days prior notice to the Board of such resignation, an Icahn Designee shall be deemed to continue to be a member of the Third Point Designees Board for purposes of this Section 2(a) of this Agreement until the twenty-fifth (including any Replacements25th) are members of the Board; provided, however, that with respect to each succeeding annual meeting of Company shareholders after the 2014 Annual Meeting, if Third Point and the Company agree in writing to include the Third Point Designees (or their Replacement) on the Company’s slate of director nominees for any annual meeting of Company shareholders after the 2014 Annual Meeting, the Standstill Period shall continue through and including the date of such applicable annual meeting and if the Third Point Designees are so elected by the shareholders as directors as part of the incumbent Board slate of nominees, then the Standstill Period shall further extend until day following the later of (x) 12:01 a.m. on the sixtieth (60th) day prior to the advance notice deadline for making director nominations at the annual meeting of Company shareholders subsequent to such re-election of the Third Point Designees to the Board, and (y) thirty days after such time as none of the Third Point Designees (including any Replacements) are members of the Board; provided, further, that if the Third Point Designees are not so elected and do not resign from the Board, the Standstill Period shall continue until thirty days after such time as none of the Third Point Designees (including any Replacements) are members of the Board. Notwithstanding anything to the contrary in this Agreement, during the thirty day period following the resignation of all Third Point Designees, Third Point may take all actions appropriate to prepare and deliver to the Company a notice of director nominations for the upcoming annual meeting, but during such thirty-day period neither Third Point nor the Company shall make any public disclosure that would otherwise be contrary to the terms of this Agreement, except as may be required by law.
(ii) Notwithstanding anything to the contrary in this Section 2(a), the Company agrees that for so long as any of the Third Point Designees (or their Replacements) are on the Board (A) the Board shall promptly notify Third Point in writing effective date of its decision not to nominate any Third Point Designee for election at the 2015 Annual Meeting or any subsequent annual meeting of shareholders (which written notice, if any, shall in any event not be delivered any later than 60 days prior to the advance notice deadline for making director nominations at such upcoming annual meeting), resignation and (B) the Board shall take all appropriate action to (I) provide Third Point with at least a 60-day period from the time Third Point is notified in writing that any date of the Third Point Designees have Replacement Waiver) (such period, the “Board Representation Period”), so long as the Company has not been so nominated materially breached this Agreement and failed to comply with the advance cure such breach within five (5) business days of written notice provisions for nominations of directors contained in the Bylaws at such upcoming annual meeting and (II) cause such upcoming annual meeting not to be held prior to 90 days following the time Third Point is notified that from any member of the Third Point Designees has not been so nominated.
(b) During the Standstill PeriodIcahn Group specifying any such breach, no member of Third Point the Icahn Group shall, directly or indirectly, and each member of Third Point the Icahn Group shall cause each Third Point Icahn Affiliate not to, directly or indirectly (it being understood and agreed that none of the following restrictions shall not apply to the Third Point Designees acting any Icahn Designee or Replacement solely in their capacities such person’s capacity as a director of the Company consistent or in any way prevent or restrict such director from raising any of the matters described in the following restrictions with other members of the Board (solely in their fiduciary duties to the Companycapacity as directors)):
(i) solicit proxies or written consents of stockholders or conduct any other type of referendum (binding or non-binding) with respect to, or from the holders of, the Voting Securities (as defined below), or become a “participant” (as such term is defined in Instruction 3 to Item 4 of Schedule 14A promulgated under the Exchange Act) in or assist any Third Party (as defined herein) third party in any “solicitation” of any proxy, consent or other authority (as such terms are defined under the Exchange Act) to vote or withhold from voting any shares of the Voting Securities (other than such encouragement, advice or influence that is consistent with Company management’s recommendation in connection with such matter);
(ii) encourage, advise or influence any other person or assist any Third Party third party in so encouraging, assisting or influencing any person with respect to the giving or withholding of any proxy, consent or other authority to vote or in conducting any type of referendum (other than such encouragement, advice or influence that is consistent with Company management’s recommendation in connection with such matter);
(iii) form or join in a partnership, limited partnership, syndicate or other group, including a “group” as defined under Section 13(d) of the Exchange Act, with respect to the Voting Securities (for the avoidance of doubtSecurities, excluding any group composed solely of Third Point and their Affiliates) or otherwise support or participate in any effort by a Third Party third party with respect to the matters set forth in clauses clause (i), (viivi) or (ixviii) herein, except in the case of paragraph (viii), as may be compelled by judicial process or required by regulatory requirements;
(iv) present (or request to present) at any annual meeting or any special meeting of the Company’s stockholders or through action by written consent any proposal for consideration for action by stockholders or seek the removal of any member of the Board or (except as explicitly permitted by this Agreement with respect to a Replacement and other than through action at the Board by a Third Point Designee acting in his or her capacity as suchAgreement) propose (or request to propose) any nominee for election to the Board or seek representation on the Board or the removal of any member of the Board;
(v) other than in Rule 144 open market broker sale transactions where the identity of the purchaser is not known and in underwritten widely dispersed public offerings, sell, offer or agree to sell directly or indirectly, through swap or hedging transactions or otherwise, the securities of the Company or any rights decoupled from the underlying securities held by Third Point to any person or entity not a party to this agreement (a “Third Party”) that would knowingly result in such Third Party, together with its Affiliates, owning, controlling or otherwise having any beneficial or other ownership interest in the aggregate of 5% or more of the shares of Common Stock outstanding at such time or would increase the beneficial or other ownership interest of any Third Party who, together with its Affiliates, has a beneficial or other ownership interest in the aggregate of 5% or more of the shares of Common Stock outstanding at such time, except in each case in a transaction approved by the Board;
(vi) grant any proxy, consent or other authority to vote with respect to any matters (other than to the named proxies included in the Company’s proxy card for any annual meeting or special meeting of stockholders) or deposit any Voting Securities of the Company in a voting trust or subject them to a voting agreement or other arrangement of similar effect with respect to any (x) annual meeting except as provided in Section 2(cof stockholders, (y) below, special meeting of stockholders or (z) action by written consent (excluding customary brokerage accounts, margin accounts, prime brokerage accounts and the like), in each case, except as provided in Section 2(b) below;
(viivi) make any request for stocklist materials or other books and records of the Company under Section 220 of the Delaware General Corporation Law or otherwiseLaw;
(viiivii) make, or cause to be made, by press release or similar public statement to the press or media (including social media), or in an SEC filing, any statement or announcement that relates to and constitutes an ad hominem attack on, or relates to and otherwise disparages, disparages (as distinct from objective statements reflecting business criticism) the Company, its officers or its directors or any person who has served as an officer or director of the Company in the past, or who serves on or following the date of this Agreement as an officer or director of the Company: (i) in any document or report filed with or furnished to the SEC or any other governmental agency, (ii) in any press release or other publicly available format, or (iii) to any analyst, journalist or member of the media (including without limitation, in a television, radio, newspaper or magazine interview) (and the Company agrees that this Section 2(b)(viii) shall apply mutatis mutandis to the Company and its directors and officers with respect to Third Point);
(ixviii) other than litigation by Third Point to enforce the provisions of this Agreement, institute, solicit, assist or join, as a party, any litigation, arbitration or other proceeding against or involving the Company or any of its current or former directors or officers (including derivative actions)) other than to enforce the provisions of this Agreement;
(ix) acquire Beneficial Ownership of Voting Securities that would equal or exceed (in the aggregate with all other members of the Icahn Group and all Icahn Affiliates) the greater of (x) without the prior approval 20% of the Board, separately or in conjunction with then total outstanding Voting Securities and (y) the percentage of the then total outstanding Voting Securities acquired by any other person or entity Person under circumstances in which the Board has waived or carved out by exception or similar devices the applicability of the Rights Agreement or any other Rights Plan (as hereafter defined) which the Company hereafter adopts to such Person’s acquisition of the Voting Securities (and the Company hereby does, and agrees that it shall, provide the same waiver, carve out, exception or similar device for the Icahn Group and its Affiliates). The term “Rights Plan” shall mean any plan or arrangement of the sort commonly referred to as a “rights plan” or “stockholder rights plan” or “shareholder rights plan” or “poison pill” that is designed to increase the cost to a potential acquirer of exceeding the applicable ownership thresholds either through the issuance of new rights, Common Shares or proposes preferred shares (or any other security or device that may be issued to be either a principal, partner or financing source or is acting or proposes stockholders of the Company other than ratably to act as broker or agent for compensation, propose (publicly, privately or to all stockholders of the Company) that carry severe redemption provisions, favorable purchase provisions or participate inotherwise, effect or seek to effect, and any tender offer or exchange offer, merger, acquisition, reorganization, restructuring, recapitalization or other business combination involving the Company or a material amount of the assets or businesses of the Company (collectively, an “Extraordinary Transaction”) or encourage, initiate or support any other Third Party in any such activity; provided, that Third Point may commence or participate in any tender offer or exchange offer, or a combination thereof, in each such case, that is made for all of the shares of Common Stock outstanding at such time at the same per-share consideration, the consummation of which is conditioned upon acceptance by a majority of the outstanding shares of Common Stock (calculated on a fully diluted basis), so long as the Company and its stockholders receive an irrevocable, legally binding written commitment from Third Point (or such other third party making therelated rights agreement;
Appears in 1 contract
Certain Other Matters. (i) Each Third Point Designee or Replacement shall be entitled to resign from the Board at any time in his or her discretion. For purposes of this Agreement, the “Standstill Period” shall mean the period from the date of this Agreement until the later of (x) 12:01 a.m. on the sixtieth (60th) day If immediately prior to the advance notice deadline for making director nominations Separation Effective Time, the Icahn Group has, together with the Icahn Affiliates, at least the Company’s 2015 Annual Meeting, and same Beneficial Ownership of Common Stock (yas defined below) thirty days after such time as none it has as of the Third Point Designees date hereof and the Icahn Group has not materially breached this Agreement or the Confidentiality Agreement and failed to cure such breach within five business days of written notice from the Company specifying any such breach, the Company will take such action (including any Replacementsif it has not previously so acted) are members as permitted by law and necessary and appropriate to provide that, as of the Board; provided, however, that with respect to each succeeding annual meeting Separation Effective Time and until the conclusion of Company shareholders after the 2014 Annual Meeting, if Third Point and the Company agree in writing to include the Third Point Designees (or their Replacement) on the Company’s slate of director nominees for any annual meeting of Company shareholders after the 2014 Annual Meeting, the Standstill Period shall continue through (such period, the "Specified Period," provided that if the SpinCo Board Election has been made and including SpinCo has elected pursuant to Section 1(d) not to nominate the date Icahn Nominee as a director for election at a Subsequent Meeting and the Icahn Nominee ceases to serve on the SpinCo Board prior to the conclusion of such applicable annual meeting and if the Third Point Designees are so elected by the shareholders as directors as part of the incumbent Board slate of nomineesSubsequent Meeting, then the Standstill Specified Period shall further extend until the later of (x) 12:01 a.m. on the sixtieth (60th) day prior to the advance notice deadline for making director nominations expire at the annual meeting conclusion of Company shareholders subsequent to such re-election of the Third Point Designees to the Board, and (y) thirty days after such time as none of the Third Point Designees (including any Replacements) are members of the Board; provided, further, that if the Third Point Designees are not so elected and do not resign from the Board, the Standstill Period shall continue until thirty days after such time as none of the Third Point Designees (including any Replacements) are members of the Board. Notwithstanding anything to the contrary in this Agreement, during the thirty day period following the resignation of all Third Point Designees, Third Point may take all actions appropriate to prepare and deliver to the Company a notice of director nominations for the upcoming annual meeting, but during such thirty-day period neither Third Point nor the Company shall make any public disclosure that would otherwise be contrary to the terms of this AgreementSubsequent Meeting), except as may be required approved by law.
the stockholders of the Company or the stockholders of SpinCo, as applicable: (i) the SpinCo Board is annually elected (i.e., not a "staggered" board); (ii) Notwithstanding anything the provisions of SpinCo's certificate of incorporation and/or bylaws (but if only in the bylaws, then the provision granting stockholders such right to call special meetings may not be amended without a stockholder vote or restricted in the certificate of incorporation) enable a special meeting of stockholders to be requested by stockholders who meet reasonable requirements specified therein (including but not limited to advance notice, required disclosures, permitted matters and other terms which shall not in the aggregate be more restrictive than the stockholder special meeting rights provided for under the Company's bylaws as in effect as of the date hereof, provided that (X) the ownership threshold shall be at 20% of the outstanding shares of common stock of SpinCo (the "SpinCo Shares") as opposed to the contrary 25% ownership threshold in this Section 2(a), the Company agrees Company's current bylaws and (Y) until such time after the Separation Effective Time that for so long as any of the Third Point Designees a single person or entity (or their Replacements) are on the Board (A) the Board shall promptly notify Third Point in writing "group" of its decision not to nominate any Third Point Designee for election at the 2015 Annual Meeting persons or any subsequent annual meeting of shareholders (which written notice, if any, shall in any event not be delivered any later than 60 days prior to the advance notice deadline for making director nominations at such upcoming annual meeting), and (B) the Board shall take all appropriate action to (I) provide Third Point with at least a 60-day period from the time Third Point is notified in writing that any of the Third Point Designees entities who have not been so nominated to comply with the advance notice provisions for nominations of directors contained in the Bylaws at such upcoming annual meeting and (II) cause such upcoming annual meeting not to be held prior to 90 days following the time Third Point is notified that any of the Third Point Designees has not been so nominated.
(b) During the Standstill Period, no member of Third Point shall, directly or indirectly, and each member of Third Point shall cause each Third Point Affiliate not to, directly or indirectly (it being understood and agreed that the following restrictions shall not apply to the Third Point Designees acting solely in their capacities filed as a director of the Company consistent with their fiduciary duties to the Company):
(i) solicit proxies or written consents of stockholders or conduct any other type of referendum (binding or non-binding) with respect to, or from the holders of, the Voting Securities (as defined below), or become a “participant” (as such term is defined in Instruction 3 to Item 4 of Schedule 14A promulgated under the Exchange Act) in or assist any Third Party (as defined herein) in any “solicitation” of any proxy, consent or other authority (as such terms are defined under the Exchange Act) to vote any shares of the Voting Securities (other than such encouragement, advice or influence that is consistent with Company management’s recommendation in connection with such matter);
(ii) encourage, advise or influence any other person or assist any Third Party in so encouraging, assisting or influencing any person with respect to the giving or withholding of any proxy, consent or other authority to vote or in conducting any type of referendum (other than such encouragement, advice or influence that is consistent with Company management’s recommendation in connection with such matter);
(iii) form or join in a partnership, limited partnership, syndicate or other "group, including a “group” " as defined under Section 13(d) of the Exchange ActAct with respect to their ownership in SpinCo) owns at least a majority of the outstanding stock of SpinCo, business at stockholder-called special meetings shall not be authorized to include the removal of directors or the election of directors, which matters shall only be taken by the stockholders at an annual meeting) and (Z) following such time after the Separation Effective Time that a single person or entity (or "group" of persons or entities who have filed as a "group" as defined under Section 13(d) of the Exchange Act with respect to their ownership in SpinCo) owns at least a majority of the outstanding stock of SpinCo, the removal and replacement of directors at a special meeting shall not require a vote of more than a majority of shares present and voted at such meeting; (iii) the provisions of neither SpinCo's certificate of incorporation nor its bylaws do not, except as required by law (or with respect to the Voting Securities DGCL 203-equivalent provisions referred to in clause (vi) below), impose minimum voting requirements for which matters subject to a stockholder vote are deemed approved greater than requiring approval from a majority of the avoidance outstanding SpinCo Shares; (iv) SpinCo will schedule its first annual meeting of doubtstockholders following the Separation Effective Time no later than the twelve-month anniversary of the Separation Effective Time; (v) "stockholder rights plans" adopted by the SpinCo Board shall not have triggering "Acquiring Person" ownership thresholds below 19.9% of the then-outstanding SpinCo Shares and, excluding any group composed solely if not ratified by stockholders within one hundred thirty-five days of Third Point and their Affiliatestaking effect, shall automatically expire; (vi) or otherwise support or participate SpinCo shall have elected to opt-out of application of DGCL 203 (it being understood that comparable provisions may be included in any effort by SpinCo's certificate of incorporation and/or bylaws but with a Third Party with respect 20% ownership threshold instead of the 15% provided for in DGCL 203, amendment of which may be subject to the matters set forth equivalent vote as would be required in clauses (iDGCL 203), (vii) SpinCo shall not adopt or approve change-of-control provisions in material agreements (ixsuch as debt, equity compensation or severance arrangements) herein;
(iv) present at any annual meeting or any special meeting of the Company’s stockholders or through action by written consent any proposal for consideration for action by stockholders or seek the removal of any member of the Board or (except as explicitly permitted by this Agreement with respect to a Replacement ownership triggers below 20%, and other than through action at the Board by a Third Point Designee acting in his or her capacity as such) propose any nominee for election to the Board or seek representation on the Board;
(v) other than in Rule 144 open market broker sale transactions where the identity of the purchaser is not known and in underwritten widely dispersed public offerings, sell, offer or agree to sell directly or indirectly, through swap or hedging transactions or otherwise, the securities of the Company or any rights decoupled from the underlying securities held by Third Point to any person or entity not a party to this agreement (a “Third Party”) that would knowingly result in such Third Party, together with its Affiliates, owning, controlling or otherwise having any beneficial or other ownership interest in the aggregate of 5% or more of the shares of Common Stock outstanding at such time or would increase the beneficial or other ownership interest of any Third Party who, together with its Affiliates, has a beneficial or other ownership interest in the aggregate of 5% or more of the shares of Common Stock outstanding at such time, except in each case in a transaction approved by the Board;
(vi) grant any proxy, consent or other authority to vote with respect to any matters (other than to the named proxies included in the Company’s proxy card for any annual meeting or special meeting of stockholders) or deposit any Voting Securities of the Company in a voting trust or subject them to a voting agreement or other arrangement of similar effect with respect to any annual meeting except as provided in Section 2(c) below, special meeting of stockholders or action by written consent (excluding customary brokerage accounts, margin accounts, prime brokerage accounts and the like);
(vii) make any request for stocklist materials or other books and records of the Company under Section 220 of the Delaware General Corporation Law or otherwise;
(viii) makeif SpinCo receives a bona fide, or cause to be made, any statement or announcement that relates to and constitutes an ad hominem attack on, or relates to and otherwise disparages, binding premium offer from a third party (the Company, its officers or its directors or any person who has served as an officer or director of the Company in the past, or who serves on or following the date of this Agreement as an officer or director of the Company: (i) in any document or report filed with or furnished to the SEC or any other governmental agency, (ii) in any press release or other publicly available format, or (iii"Initial Party") to any analyst, journalist or member of the media (including without limitation, in a television, radio, newspaper or magazine interview) (and the Company agrees that this Section 2(b)(viii) shall apply mutatis mutandis to the Company and its directors and officers with respect to Third Point);
(ix) other than litigation by Third Point to enforce the provisions of this Agreement, institute, solicit, assist or join, as a party, any litigation, arbitration or other proceeding against or involving the Company or any of its current or former directors or officers (including derivative actions);
(x) without the prior approval of the Board, separately or in conjunction with any other person or entity in which it is or proposes to be either a principal, partner or financing source or is acting or proposes to act as broker or agent for compensation, propose (publicly, privately or to the Company) or participate in, effect or seek to effect, any tender offer or exchange offer, merger, acquisition, reorganization, restructuring, recapitalization or other business combination involving the Company or a material amount of the assets or businesses of the Company (collectively, an “Extraordinary Transaction”) or encourage, initiate or support any other Third Party in any such activity; provided, that Third Point may commence or participate in any tender offer or exchange offer, or a combination thereof, in each such case, that is made for acquire all of the shares of Common Stock outstanding at such time at the same per-share consideration, the consummation of which is conditioned upon acceptance by a majority of the outstanding shares of Common Stock SpinCo and rejects that offer in favor of an offer from another party (calculated on the "Other Party") that the SpinCo Board deems superior, and if SpinCo engages in substantive negotiations with such Other Party and provides material non-public information to it and the Initial Party then makes a fully diluted basis)"topping" bona fide, so long as binding premium bid that is superior to the Company Other Party's offer and its stockholders receive an irrevocablerequests non-public information from SpinCo, legally binding written commitment from Third Point (or SpinCo will, subject to fiduciary duties and compliance with contractual arrangements, enter into a confidentiality agreement with the Initial Party that would enable non-competitively sensitive non-public information to be shared with such other third party making theparty.
Appears in 1 contract
Certain Other Matters. (ia) Each Third Point The IVA Designee or Replacement shall be entitled to resign from the Board at any time in his discretion and, upon resignation, shall have no obligations thereafter imposed under this Section 2 on the IVA Designee or her discretionIVA. For purposes of this Agreement, the “Standstill Period” shall mean the period from the date of this Agreement until such time as the later IVA Designee (or his Replacement, if applicable) is no longer a member of the Board. If the IVA Designee (xor his or her Replacement, if applicable) 12:01 a.m. agrees to be included as a director nominee for election at any Stockholders Meeting other than as a director nominated by the Board for election at such Stockholders Meeting, the IVA Designee Resignation previously provided by such IVA Designee shall become effective.
(b) The Company agrees that for so long as the IVA Designee (or any Replacement) is on the sixtieth Board, the Company shall forthwith notify IVA, in writing, as to the Board’s decision whether or not to nominate the IVA Designee (60thor any Replacement) day for election at a Re-election Meeting (which written notice from the Company, if any, shall in any event be delivered to IVA not later than thirty (30) days prior to the advance notice deadline for making director nominations at the Company’s 2015 Annual Meeting, and (y) thirty days after such time as none of the Third Point Designees (including any Replacements) are members of the Board; provided, however, that with respect to each succeeding annual meeting of Company shareholders after the 2014 Annual Meeting, if Third Point and the Company agree in writing to include the Third Point Designees (or their Replacement) on the Company’s slate of director nominees for any annual meeting of Company shareholders after the 2014 Annual Meeting, the Standstill Period shall continue through and including the date of such applicable annual meeting and if the Third Point Designees are so elected by the shareholders as directors as part of the incumbent Board slate of nominees, then the Standstill Period shall further extend until the later of (x) 12:01 a.m. on the sixtieth (60th) day prior to the advance notice deadline for making director nominations at the annual meeting of Company shareholders subsequent to such reRe-election of the Third Point Designees to the Board, and (y) thirty days after such time as none of the Third Point Designees (including any Replacements) are members of the Board; provided, further, that if the Third Point Designees are not so elected and do not resign from the Board, the Standstill Period shall continue until thirty days after such time as none of the Third Point Designees (including any Replacements) are members of the Board. Notwithstanding anything to the contrary in this Agreement, during the thirty day period following the resignation of all Third Point Designees, Third Point may take all actions appropriate to prepare and deliver to the Company a notice of director nominations for the upcoming annual meeting, but during such thirty-day period neither Third Point nor the Company shall make any public disclosure that would otherwise be contrary to the terms of this Agreement, except as may be required by lawMeeting).
(iic) Notwithstanding anything to the contrary Except as set forth in this Section 2(a2(d), the Company agrees that for so long as any of the Third Point Designees (or their Replacements) are on the Board (A) the Board shall promptly notify Third Point in writing of its decision not to nominate any Third Point Designee for election at the 2015 Annual Meeting or any subsequent annual meeting of shareholders (which written notice, if any, shall in any event not be delivered any later than 60 days prior to the advance notice deadline for making director nominations at such upcoming annual meeting), and (B) the Board shall take all appropriate action to (I) provide Third Point with at least a 60-day period from the time Third Point is notified in writing that any of the Third Point Designees have not been so nominated to comply with the advance notice provisions for nominations of directors contained in the Bylaws at such upcoming annual meeting and (II) cause such upcoming annual meeting not to be held prior to 90 days following the time Third Point is notified that any of the Third Point Designees has not been so nominated.
(b) During during the Standstill Period, no member of Third Point IVA shall, directly or indirectly, and each member of Third Point IVA shall cause each Third Point IVA Affiliate not to, directly or indirectly (it being understood and agreed that the following restrictions shall not apply to the Third Point Designees acting solely in their capacities as a director of the Company consistent with their fiduciary duties to the Company):indirectly:
(i) (A) solicit proxies or written consents of stockholders or conduct any other type of referendum (binding or non-binding) with respect to, or from the holders of, the Voting Securities (as defined below), or become a “participant” (as such term is defined in Instruction 3 to Item 4 of Schedule 14A promulgated under the Exchange Act) in or assist any Person not a party to this Agreement (a “Third Party (as defined hereinParty”) in any “solicitation” of any proxy, consent or other authority (as such terms are defined under the Exchange Act) to vote any shares of the Voting Securities (other than such encouragement, advice or influence that is consistent with Company management’s recommendation in connection with such matter), or (B) control or exert influence over or seek to control or exert influence over the voting of any Voting Securities as to which a Third Party that is counterparty to any Net Long Position of IVA possesses power to vote or direct the voting (other than such control or influence that is consistent with Company management’s recommendation in connection with such matter);
(ii) encourage, advise or influence any other person Person or assist any Third Party in so encouraging, assisting or influencing any person Person with respect to the giving or withholding of any proxy, consent or other authority to vote or in conducting any type of referendum (other than such encouragement, advice or influence that is consistent with Company management’s recommendation in connection with such matter);
(iii) form or join in a partnership, limited partnership, syndicate or other group, including a “group” as defined under Section 13(d) of the Exchange Act, with respect to the Voting Securities (including any Net Long Position) (for the avoidance of doubt, excluding any group composed solely of Third Point IVA and their the IVA Affiliates) or otherwise support or participate in any effort by a Third Party with respect to the matters set forth in clauses (i), (vi), (vii) or (ix) hereinof this Section 2(c);
(iv) present at any annual meeting or any special meeting of the Company’s stockholders or through action by written consent any proposal for consideration for action by stockholders or seek the removal of any member of the Board or (except as explicitly expressly permitted by in this Agreement with respect to a Replacement and other than through action at the Board by a Third Point Designee acting in his or her capacity as suchReplacement) propose any nominee for election to the Board or seek representation on the Board;
(v) other than in Rule 144 open market broker sale transactions where the identity of the purchaser is not known and in underwritten widely dispersed public offerings, sell, offer or agree to sell directly or indirectly, through swap or hedging transactions or otherwise, the securities of the Company or any rights decoupled from the underlying securities held by Third Point to any person or entity not a party to this agreement (a “Third Party”) that would knowingly result in such Third Party, together with its Affiliates, owning, controlling or otherwise having any beneficial or other ownership interest in the aggregate of 5% or more of the shares of Common Stock outstanding at such time or would increase the beneficial or other ownership interest of any Third Party who, together with its Affiliates, has a beneficial or other ownership interest in the aggregate of 5% or more of the shares of Common Stock outstanding at such time, except in each case in a transaction approved by the Board;
(vi) grant any proxy, consent or other authority to vote with respect to any matters (other than to the named proxies included in the Company’s proxy card for any annual meeting or special meeting of stockholders) or deposit any Voting Securities of the Company in a voting trust or subject them to a voting agreement or other arrangement of similar effect with respect to any annual meeting except as provided in Section 2(c) below, special meeting of stockholders or action by written consent (excluding customary brokerage accounts, margin accounts, prime brokerage accounts and the like);
(vii) make any request for stocklist stockholders list materials or other books and records of the Company under Section 220 of the Delaware General Corporation Law or otherwise;
(viiivi) make, or cause to be made, any statement or announcement that relates to and constitutes an ad hominem attack on, or relates to and otherwise disparages, the Company, its officers or its directors or any person who has served as an officer or director of the Company in the past, or who serves on or following the date of this Agreement as an officer or director of the Company: (i) in any document or report filed with or furnished to the SEC or any other governmental agency, (ii) in any press release or other publicly available format, or (iii) to any analyst, journalist or member of the media (including without limitation, in a television, radio, newspaper or magazine interview) (and the Company agrees that this Section 2(b)(viii) shall apply mutatis mutandis to the Company and its directors and officers with respect to Third Point);
(ix) other than litigation by Third Point to enforce the provisions of this Agreement, institute, solicit, assist solicit or join, as a party, any litigation, arbitration or other proceeding against or involving the Company or any of its Subsidiaries (as defined below) or any of their respective current or former directors or officers (including derivative actions), other than litigation by IVA to enforce the provisions of this Agreement; provided, that this clause (vi) shall not require IVA to opt-out of any class action lawsuit against the Company or any of its Subsidiaries;
(xvii) without the prior written approval of the Board, separately or in conjunction with any other person or entity Person in which it is or proposes to be either a principal, partner or financing source or is acting or proposes to act as broker or agent for compensation, propose (publicly, privately or to the Company) or participate ineffect any merger, effect or seek to effectconsolidation, any business combination, tender offer or exchange offer, mergersale or purchase of assets, acquisitionsale or purchase of securities, dissolution, liquidation, reorganization, restructuring, recapitalization recapitalization, extraordinary dividend, significant share repurchase or other business combination similar transaction of or involving the Company or any of its Affiliates or a material amount of the assets or businesses of the Company (collectively, an “Extraordinary Transaction”) or actively encourage, initiate or support any other Third Party in any such activity; provided;
(viii) purchase or cause to be purchased or otherwise acquire or agree to acquire Beneficial Ownership of any Voting Securities (including adding to any Net Long Position and, for purposes of this calculation, including any Synthetic Positions) such that Third Point may commence or participate in IVA and the IVA Affiliates would collectively beneficially own (including for purposes of this calculation, any tender offer or exchange offer, or a combination thereof, in each such case, that is made for all net long Synthetic Positions as beneficial ownership of the shares associated Voting Securities) more than nineteen and nine-tenths percent (19.9%) of Common Stock the Company’s issued and outstanding Voting Securities at such time at time;
(ix) except as set forth herein, take any action in support of or make any proposal or request that constitutes (A) controlling, changing or influencing the same per-share consideration, the consummation of which is conditioned upon acceptance by a majority Board or management of the outstanding shares Company, including any plans or proposals to change the number or term of Common Stock directors or to fill any vacancies on the Board, (calculated on a fully diluted basis)B) any material change in the capitalization, so long as stock repurchase programs and practices, capital allocation programs and practices or dividend policy of the Company, (C) any other material change in the Company’s management, business or corporate structure or (D) seeking to have the Company and its stockholders receive an irrevocablewaive or make amendments or modifications to the Company’s certificate of incorporation or by-laws;
(x) enter into any negotiations, legally binding written commitment from agreements, arrangements or understandings with any Third Point Party with respect to the matters set forth in this Section 2; or
(xi) request, directly or indirectly, any amendment or waiver of the foregoing in a manner that would be reasonably likely to require public disclosure by IVA (or such other third party making theany of its Affiliates) or the Company.
Appears in 1 contract
Certain Other Matters. (ia) Each Third Point The parties acknowledge that an Icahn Designee or Replacement shall be entitled to may resign from the Board at any time in his or her discretionby giving at least twenty-five (25) calendar days prior written notice to the Board. For purposes of this Agreement, the “Standstill Period” shall mean the period from From the date of this Agreement until the later of (xi) 12:01 a.m. on the sixtieth (60th) day prior to conclusion of the advance notice deadline for making director nominations at the Company’s 2015 2021 Annual Meeting, and (yii) thirty days after the date that no Icahn Designee is a member of the Board (it being understood that if such an Icahn Designee is no longer a member of the Board due to circumstances in which the Icahn Group would be entitled to appoint a Replacement, an Icahn Designee shall be deemed to continue to be a member of the Board for all purposes of this Agreement until such time as none the Icahn Group irrevocably waives in writing any right to designate such a Replacement or appoints such a Replacement (the “Replacement Waiver”); provided that if an Icahn Designee resigns and fails to give at least twenty-five (25) calendar days prior notice to the Board of such resignation, an Icahn Designee shall be deemed to continue to be a member of the Third Point Designees Board for purposes of this Section 2(a) of this Agreement until the twenty-fifth (including any Replacements25th) are members of the Board; provided, however, that with respect to each succeeding annual meeting of Company shareholders after the 2014 Annual Meeting, if Third Point and the Company agree in writing to include the Third Point Designees (or their Replacement) on the Company’s slate of director nominees for any annual meeting of Company shareholders after the 2014 Annual Meeting, the Standstill Period shall continue through and including the date of such applicable annual meeting and if the Third Point Designees are so elected by the shareholders as directors as part of the incumbent Board slate of nominees, then the Standstill Period shall further extend until day following the later of (x) 12:01 a.m. on the sixtieth (60th) day prior to the advance notice deadline for making director nominations at the annual meeting of Company shareholders subsequent to such re-election of the Third Point Designees to the Board, and (y) thirty days after such time as none of the Third Point Designees (including any Replacements) are members of the Board; provided, further, that if the Third Point Designees are not so elected and do not resign from the Board, the Standstill Period shall continue until thirty days after such time as none of the Third Point Designees (including any Replacements) are members of the Board. Notwithstanding anything to the contrary in this Agreement, during the thirty day period following the resignation of all Third Point Designees, Third Point may take all actions appropriate to prepare and deliver to the Company a notice of director nominations for the upcoming annual meeting, but during such thirty-day period neither Third Point nor the Company shall make any public disclosure that would otherwise be contrary to the terms of this Agreement, except as may be required by law.
(ii) Notwithstanding anything to the contrary in this Section 2(a), the Company agrees that for so long as any of the Third Point Designees (or their Replacements) are on the Board (A) the Board shall promptly notify Third Point in writing effective date of its decision not to nominate any Third Point Designee for election at the 2015 Annual Meeting or any subsequent annual meeting of shareholders (which written notice, if any, shall in any event not be delivered any later than 60 days prior to the advance notice deadline for making director nominations at such upcoming annual meeting), resignation and (B) the Board shall take all appropriate action to (I) provide Third Point with at least a 60-day period from the time Third Point is notified in writing that any date of the Third Point Designees have Replacement Waiver) (such period, the “Board Representation Period”), so long as the Company has not been so nominated materially breached this Agreement and failed to comply with the advance cure such breach within five (5) business days of written notice provisions for nominations of directors contained in the Bylaws at such upcoming annual meeting and (II) cause such upcoming annual meeting not to be held prior to 90 days following the time Third Point is notified that from any member of the Third Point Designees has not been so nominated.
(b) During the Standstill PeriodIcahn Group specifying any such breach, no member of Third Point the Icahn Group shall, directly or indirectly, and each member of Third Point the Icahn Group shall cause each Third Point Icahn Affiliate not to, directly or indirectly (it being understood and agreed that none of the following restrictions shall not apply to the Third Point Designees acting any Icahn Designee or Replacement solely in their capacities such person’s capacity as a director of the Company consistent or in any way prevent or restrict such director from privately raising any of the matters described in the following restrictions with other members of the Board (solely in their fiduciary duties to the Companycapacity as directors)):
(i) solicit proxies or written consents of stockholders shareholders or conduct any other type of referendum (binding or non-binding) with respect to, or from the holders of, the Voting Securities (as defined below), or become a “participant” (as such term is defined in Instruction 3 to Item 4 of Schedule 14A promulgated under the Exchange Act) in or assist any Third Party (as defined herein) third party in any “solicitation” of any proxy, consent or other authority (as such terms are defined under the Exchange Act) to vote or withhold from voting any shares of the Voting Securities (other than such encouragement, advice or influence that is consistent with Company management’s recommendation in connection with such matter);
(ii) encourage, advise or influence any other person or assist any Third Party third party in so encouraging, assisting or influencing any person with respect to the giving or withholding of any proxy, consent or other authority to vote or in conducting any type of referendum referendum, whether binding or non-binding (other than such encouragement, advice or influence that is consistent with Company management’s recommendation in connection with such matter);
(iii) form or join in a partnership, limited partnership, syndicate or other group, including a “group” as defined under Section 13(d) of the Exchange Act, with respect to the Voting Securities (for the avoidance of doubtSecurities, excluding any group composed solely of Third Point and their Affiliates) or otherwise support or participate in any effort by a Third Party third party with respect to the matters set forth in clauses clause (i), (viiii), (iv), (vi), (viii) or (ixxi) herein, except in the case of paragraph (viii), as may be compelled by judicial process or required by regulatory requirements;
(iv) present (or request to present) at any annual meeting or any special meeting of the Company’s stockholders shareholders or through action by written consent any proposal for consideration for action by stockholders or seek the removal of any member of the Board shareholders or (except as explicitly permitted by this Agreement with respect to a Replacement and other than through action at the Board by a Third Point Designee acting in his or her capacity as suchAgreement) propose (or request to propose) any nominee for election to the Board or seek representation on the Board or the removal of any member of the Board;
(v) other than in Rule 144 open market broker sale transactions where the identity of the purchaser is not known and in underwritten widely dispersed public offerings, sell, offer or agree to sell directly or indirectly, through swap or hedging transactions or otherwise, the securities of the Company or any rights decoupled from the underlying securities held by Third Point to any person or entity not a party to this agreement (a “Third Party”) that would knowingly result in such Third Party, together with its Affiliates, owning, controlling or otherwise having any beneficial or other ownership interest in the aggregate of 5% or more of the shares of Common Stock outstanding at such time or would increase the beneficial or other ownership interest of any Third Party who, together with its Affiliates, has a beneficial or other ownership interest in the aggregate of 5% or more of the shares of Common Stock outstanding at such time, except in each case in a transaction approved by the Board;
(vi) grant any proxy, consent or other authority to vote with respect to any matters (other than to the named proxies included in the Company’s proxy card for any annual meeting or special meeting of stockholdersshareholders) or deposit any Voting Securities of the Company in a voting trust or subject them to a voting agreement or other arrangement of similar effect with respect to any (x) annual meeting except as provided in Section 2(cof shareholders, (y) below, special meeting of stockholders shareholders or (z) action by written consent (excluding customary brokerage accounts, margin accounts, prime brokerage accounts and the like), in each case, except as provided in Section 2(b) below;
(vi) make any request under Section 624 of the New York Business Corporation Law and New York common or other statutory or regulatory provisions under any state law providing for shareholder access to books and records;
(vii) make any request for stocklist materials or other books and records of the Company under Section 220 of the Delaware General Corporation Law or otherwise;
(viii) make, or cause to be made, by press release or similar public statement to the press or media (including social media), or in an SEC filing, any statement or announcement that relates to and constitutes an ad hominem attack on, or relates to and otherwise disparages, disparages (as distinct from objective statements reflecting business criticism) the Company, its officers or its directors or any person who has served as an officer or director of the Company in the past, or who serves on or following the date of this Agreement as an officer or director of the Company: (i) in any document or report filed with or furnished to the SEC or any other governmental agency, (ii) in any press release or other publicly available format, or (iii) to any analyst, journalist or member of the media (including without limitation, in a television, radio, newspaper or magazine interview) (and the Company agrees that this Section 2(b)(viii) shall apply mutatis mutandis to the Company and its directors and officers with respect to Third Point);
(ixviii) other than litigation by Third Point to enforce the provisions of this Agreement, institute, solicit, assist or join, as a party, any litigation, arbitration or other proceeding against or involving the Company or any of its current or former directors or officers (including derivative actions)) other than to enforce the provisions of this Agreement or for any such litigation that is pending as of the date of this Agreement;
(ix) acquire Beneficial Ownership of Voting Securities that would equal or exceed (in the aggregate with all other members of the Icahn Group and all Icahn Affiliates) the greater of (x) without the prior approval 24.99% of the Board, separately or in conjunction with then total outstanding Voting Securities and (y) the percentage of the then total outstanding Voting Securities acquired by any other person or entity Person under circumstances in which the Board has waived or carved out by exception or similar devices the applicability of any Rights Plan (as hereafter defined) which the Company hereafter adopts to such Person’s acquisition of the Voting Securities (and the Company hereby does, and agrees that it shall, provide the same waiver, carve out, exception or similar device for the Icahn Group and its Affiliates). The term “Rights Plan” shall mean any plan or arrangement of the sort commonly referred to as a “rights plan” or “shareholder rights plan” or “shareholder rights plan” or “poison pill” that is designed to increase the cost to a potential acquirer of exceeding the applicable ownership thresholds either through the issuance of new rights, Common Shares or proposes preferred shares (or any other security or device that may be issued to be either a principal, partner or financing source or is acting or proposes shareholders of the Company other than ratably to act as broker or agent for compensation, propose (publicly, privately or to all shareholders of the Company) that carry severe redemption provisions, favorable purchase provisions or participate inotherwise, effect or seek to effect, and any tender offer or exchange offer, merger, acquisition, reorganization, restructuring, recapitalization or other business combination involving the Company or a material amount of the assets or businesses of the Company (collectively, an “Extraordinary Transaction”) or encourage, initiate or support any other Third Party in any such activity; provided, that Third Point may commence or participate in any tender offer or exchange offer, or a combination thereof, in each such case, that is made for all of the shares of Common Stock outstanding at such time at the same per-share consideration, the consummation of which is conditioned upon acceptance by a majority of the outstanding shares of Common Stock (calculated on a fully diluted basis), so long as the Company and its stockholders receive an irrevocable, legally binding written commitment from Third Point (or such other third party making therelated rights agreement;
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Certain Other Matters. (ia) Each Third Point The IVA Designee or Replacement shall be entitled to resign from the Board at any time in his discretion and, upon resignation, shall have no obligations thereafter imposed under this Section 2 on the IVA Designee or her discretionIVA. For purposes of this Agreement, the “Standstill Period” shall mean the period from the date of this Agreement until such time as the later IVA Designee (or his Replacement, if applicable) is no longer a member of the Board. If the IVA Designee (xor his or her Replacement, if applicable) 12:01 a.m. agrees to be included as a director nominee for election at any Stockholders Meeting other than as a director nominated by the Board for election at such Stockholders Meeting, the IVA Designee Resignation previously provided by such IVA Designee shall become effective.
(b) The Company agrees that for so long as the IVA Designee (or any Replacement) is on the sixtieth Board, the Company shall forthwith notify IVA, in writing, as to the Board’s decision whether or not to nominate the IVA Designee (60thor any Replacement) day for election at a Re-election Meeting (which written notice from the Company, if any, shall in any event be delivered to IVA not later than thirty (30) days prior to the advance notice deadline for making director nominations at the Company’s 2015 Annual Meeting, and (y) thirty days after such time as none of the Third Point Designees (including any Replacements) are members of the Board; provided, however, that with respect to each succeeding annual meeting of Company shareholders after the 2014 Annual Meeting, if Third Point and the Company agree in writing to include the Third Point Designees (or their Replacement) on the Company’s slate of director nominees for any annual meeting of Company shareholders after the 2014 Annual Meeting, the Standstill Period shall continue through and including the date of such applicable annual meeting and if the Third Point Designees are so elected by the shareholders as directors as part of the incumbent Board slate of nominees, then the Standstill Period shall further extend until the later of (x) 12:01 a.m. on the sixtieth (60th) day prior to the advance notice deadline for making director nominations at the annual meeting of Company shareholders subsequent to such reRe-election of the Third Point Designees to the Board, and (y) thirty days after such time as none of the Third Point Designees (including any Replacements) are members of the Board; provided, further, that if the Third Point Designees are not so elected and do not resign from the Board, the Standstill Period shall continue until thirty days after such time as none of the Third Point Designees (including any Replacements) are members of the Board. Notwithstanding anything to the contrary in this Agreement, during the thirty day period following the resignation of all Third Point Designees, Third Point may take all actions appropriate to prepare and deliver to the Company a notice of director nominations for the upcoming annual meeting, but during such thirty-day period neither Third Point nor the Company shall make any public disclosure that would otherwise be contrary to the terms of this Agreement, except as may be required by lawMeeting).
(iic) Notwithstanding anything to the contrary Except as set forth in this Section 2(a2(d), the Company agrees that for so long as any of the Third Point Designees (or their Replacements) are on the Board (A) the Board shall promptly notify Third Point in writing of its decision not to nominate any Third Point Designee for election at the 2015 Annual Meeting or any subsequent annual meeting of shareholders (which written notice, if any, shall in any event not be delivered any later than 60 days prior to the advance notice deadline for making director nominations at such upcoming annual meeting), and (B) the Board shall take all appropriate action to (I) provide Third Point with at least a 60-day period from the time Third Point is notified in writing that any of the Third Point Designees have not been so nominated to comply with the advance notice provisions for nominations of directors contained in the Bylaws at such upcoming annual meeting and (II) cause such upcoming annual meeting not to be held prior to 90 days following the time Third Point is notified that any of the Third Point Designees has not been so nominated.
(b) During during the Standstill Period, no member of Third Point IVA shall, directly or indirectly, and each member of Third Point IVA shall cause each Third Point IVA Affiliate not to, directly or indirectly (it being understood and agreed that the following restrictions shall not apply to the Third Point Designees acting solely in their capacities as a director of the Company consistent with their fiduciary duties to the Company):indirectly:
(i) (A) solicit proxies or written consents of stockholders or conduct any other type of referendum (binding or non-bindingnonbinding) with respect to, or from the holders of, the Voting Securities (as defined below), or become a “participant” (as such term is defined in Instruction 3 to Item 4 of Schedule 14A promulgated under the Exchange Act) in or assist any Person not a party to this Agreement (a “Third Party (as defined hereinParty”) in any “solicitation” of any proxy, consent or other authority (as such terms are defined under the Exchange Act) to vote any shares of the Voting Securities (other than such encouragement, advice or influence that is consistent with Company management’s recommendation in connection with such matter), or (B) control or exert influence over or seek to control or exert influence over the voting of any Voting Securities as to which a Third Party that is counterparty to any Net Long Position of IVA possesses power to vote or direct the voting (other than such control or influence that is consistent with Company management’s recommendation in connection with such matter);
(ii) encourage, advise or influence any other person Person or assist any Third Party in so encouraging, assisting or influencing any person Person with respect to the giving or withholding of any proxy, consent or other authority to vote or in conducting any type of referendum (other than such encouragement, advice or influence that is consistent with Company management’s recommendation in connection with such matter);
(iii) form or join in a partnership, limited partnership, syndicate or other group, including a “group” as defined under Section 13(d) of the Exchange Act, with respect to the Voting Securities (including any Net Long Position) (for the avoidance of doubt, excluding any group composed solely of Third Point IVA and their the IVA Affiliates) or otherwise support or participate in any effort by a Third Party with respect to the matters set forth in clauses (i), (vi), (vii) or (ix) hereinof this Section 2(c);
(iv) present at any annual meeting or any special meeting of the Company’s stockholders or through action by written consent any proposal for consideration for action by stockholders or seek the removal of any member of the Board or (except as explicitly expressly permitted by in this Agreement with respect to a Replacement and other than through action at the Board by a Third Point Designee acting in his or her capacity as suchReplacement) propose any nominee for election to the Board or seek representation on the Board;
(v) other than in Rule 144 open market broker sale transactions where the identity of the purchaser is not known and in underwritten widely dispersed public offerings, sell, offer or agree to sell directly or indirectly, through swap or hedging transactions or otherwise, the securities of the Company or any rights decoupled from the underlying securities held by Third Point to any person or entity not a party to this agreement (a “Third Party”) that would knowingly result in such Third Party, together with its Affiliates, owning, controlling or otherwise having any beneficial or other ownership interest in the aggregate of 5% or more of the shares of Common Stock outstanding at such time or would increase the beneficial or other ownership interest of any Third Party who, together with its Affiliates, has a beneficial or other ownership interest in the aggregate of 5% or more of the shares of Common Stock outstanding at such time, except in each case in a transaction approved by the Board;
(vi) grant any proxy, consent or other authority to vote with respect to any matters (other than to the named proxies included in the Company’s proxy card for any annual meeting or special meeting of stockholders) or deposit any Voting Securities of the Company in a voting trust or subject them to a voting agreement or other arrangement of similar effect with respect to any annual meeting except as provided in Section 2(c) below, special meeting of stockholders or action by written consent (excluding customary brokerage accounts, margin accounts, prime brokerage accounts and the like);
(vii) make any request for stocklist stockholders list materials or other books and records of the Company under Section 220 of the Delaware General Corporation Law or otherwise;
(viiivi) make, or cause to be made, any statement or announcement that relates to and constitutes an ad hominem attack on, or relates to and otherwise disparages, the Company, its officers or its directors or any person who has served as an officer or director of the Company in the past, or who serves on or following the date of this Agreement as an officer or director of the Company: (i) in any document or report filed with or furnished to the SEC or any other governmental agency, (ii) in any press release or other publicly available format, or (iii) to any analyst, journalist or member of the media (including without limitation, in a television, radio, newspaper or magazine interview) (and the Company agrees that this Section 2(b)(viii) shall apply mutatis mutandis to the Company and its directors and officers with respect to Third Point);
(ix) other than litigation by Third Point to enforce the provisions of this Agreement, institute, solicit, assist solicit or join, as a party, any litigation, arbitration or other proceeding against or involving the Company or any of its Subsidiaries (as defined below) or any of their respective current or former directors or officers (including derivative actions), other than litigation by IVA to enforce the provisions of this Agreement; provided, that this clause (vi) shall not require IVA to opt-out of any class action lawsuit against the Company or any of its Subsidiaries;
(xvii) without the prior written approval of the Board, separately or in conjunction with any other person or entity Person in which it is or proposes to be either a principal, partner or financing source or is acting or proposes to act as broker or agent for compensation, propose (publicly, privately or to the Company) or participate ineffect any merger, effect or seek to effectconsolidation, any business combination, tender offer or exchange offer, mergersale or purchase of assets, acquisitionsale or purchase of securities, dissolution, liquidation, reorganization, restructuring, recapitalization recapitalization, extraordinary dividend, significant share repurchase or other business combination similar transaction of or involving the Company or any of its Affiliates or a material amount of the assets or businesses of the Company (collectively, an “Extraordinary Transaction”) or actively encourage, initiate or support any other Third Party in any such activity; provided;
(viii) purchase or cause to be purchased or otherwise acquire or agree to acquire Beneficial Ownership of any Voting Securities (including adding to any Net Long Position and, for purposes of this calculation, including any Synthetic Positions) such that Third Point may commence or participate in IVA and the IVA Affiliates would collectively beneficially own (including for purposes of this calculation, any tender offer or exchange offer, or a combination thereof, in each such case, that is made for all net long Synthetic Positions as beneficial ownership of the shares associated Voting Securities) more than nineteen and nine-tenths percent (19.9%) of Common Stock the Company’s issued and outstanding Voting Securities at such time at time;
(ix) except as set forth herein, take any action in support of or make any proposal or request that constitutes (A) controlling, changing or influencing the same per-share consideration, the consummation of which is conditioned upon acceptance by a majority Board or management of the outstanding shares Company, including any plans or proposals to change the number or term of Common Stock directors or to fill any vacancies on the Board, (calculated on a fully diluted basis)B) any material change in the capitalization, so long as stock repurchase programs and practices, capital allocation programs and practices or dividend policy of the Company, (C) any other material change in the Company’s management, business or corporate structure or (D) seeking to have the Company and its stockholders receive an irrevocablewaive or make amendments or modifications to the Company’s certificate of incorporation or by-laws;
(x) enter into any negotiations, legally binding written commitment from agreements, arrangements or understandings with any Third Point Party with respect to the matters set forth in this Section 2; or
(xi) request, directly or indirectly, any amendment or waiver of the foregoing in a manner that would be reasonably likely to require public disclosure by IVA (or such other third party making theany of its Affiliates) or the Company.
Appears in 1 contract
Samples: Support Agreement (International Value Advisers, LLC)
