Certain Other Matters. (a) Xx. Xxxx shall be entitled to resign from the Board at any time in his discretion. For purposes of this Agreement, the “Standstill Period” shall mean the period from the date of this Agreement until the latest of (A) the six month anniversary of the Effective Date, (B) sixty days after Xx. Xxxx is no longer serving as a director of the Company, and (C) if Xx. Xxxx is a director at all times until the time nominations are due for the 2016 Annual Meeting, and is nominated and agrees to serve on the Company’s slate of director nominees for the 2016 Annual Meeting, the period from the printing of the proxy statement for that Meeting until the conclusion of that Meeting; provided that in no event shall the Standstill Period extend beyond the date of the 2016 Annual Meeting. (b) During the Standstill Period, each Osmium Party shall not, directly or indirectly, and each Osmium Party shall cause Xx. Xxxx and each other Osmium Affiliate and Associate not to, directly or indirectly (it being understood and agreed that the following restrictions shall not apply to Xx. Xxxx’x discussions solely among other members of the Board and/or management of 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 person or entity that is not a Party (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 the Board’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 Osmium Parties and their Affiliates and Associates), or otherwise support or participate in any effort by a Third Party with respect to the matters set forth in Section 2(b); (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 propose any nominee for election to the Board or seek representation on the Board; or call or request the calling of a special meeting of stockholders or action by stockholders through written consent; (v) 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 1(c), special meeting of stockholders or action by written consent (excluding customary brokerage accounts, margin accounts, prime brokerage accounts and the like); (vi) make any request for the Company’s stock ledger, a list of its stockholders, or other books and records of the Company under Section 220 of the Delaware General Corporation Law or otherwise (provided that this clause (vi) shall not limit Xx. Xxxx’ rights to reasonably request information solely in his capacity as a director of the Company); (vii) in any manner, directly or indirectly, make, or cause to be made, or in any way encourage any other person to make or cause to be made, any public statement or public announcement, including in any document or report filed with or furnished to the Securities and Exchange Commission or through the press, media, analysts or other persons, that disparages, defames or slanders, or otherwise constitutes an ad hominem attack on, the Company, or the Company’s subsidiaries, Affiliates, successors, assigns, officers (including any former officer and any person who serves on or following the date of this Agreement as an officer), directors (including any former director and any person who serves on or following the date of this Agreement as a director), or employees. (viii) 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 an action to enforce the provisions of this Agreement instituted in accordance with and subject to Section 7; (ix) 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 any of its subsidiaries or its or their securities or a material amount of the assets or businesses of the Company, any of the Company’s Affiliates, or any subsidiary, business, venture or division of the foregoing, or encourage, initiate or support any other Third Party in any such activity; (x) purchase or cause to be purchased or otherwise acquire or agree to acquire Beneficial Ownership of any Voting Securities, if in any such case, immediately after the taking of such action, the Osmium Parties and their Affiliates and Associates would, in the aggregate, collectively Beneficially Own, or have an economic interest in, an amount that would exceed 16.5% of the then outstanding shares of Common Stock of the Company (the “Share Limit”); provided, however, that if the closing sales price per share of the Company’s Common Stock on the New York Stock Exchange shall be less than $6.50 per share for more than five consecutive trading days, the Share Limit shall increase to 19.9% until the closing sales price per share of the Company’s Common Stock on the New York Stock Exchange shall again be above $6.50 on any trading day, at which time it shall automatically be reduced to the then outstanding shares of Common Stock of the Company Beneficially owned by the Osmium Parties and their Affiliates and Associates as of the first date on which the closing sales price per share of the Company’s Common Stock on the New York Stock Exchange shall again be above $6.50; (xi) enter into any discussions, negotiations, agreements, arrangements or understandings with any Third Party with respect to the matters set forth in this Section 2(b); or (xii) request, directly or indirectly, any amendment or waiver of the foregoing in a manner that would reasonably likely require public disclosure by any Osmium Party or any of their respective Affiliates or Associates or the Company.
Appears in 2 contracts
Samples: Nomination and Support Agreement (Osmium Partners, LLC), Nomination and Support Agreement (Rosetta Stone Inc)
Certain Other Matters. (a) Xx. Xxxx shall be entitled to resign from the Board at any time in his discretion. For purposes of this Agreement, the “Standstill Period” shall mean the period from the date of this Agreement until the latest of (A) the six month anniversary of the Effective Date12:01 a.m., (B) sixty days after Xx. Xxxx is no longer serving as a director of the CompanyEastern time, and (C) if Xx. Xxxx is a director at all times until the time nominations are due for the 2016 Annual Meeting, and is nominated and agrees to serve on the Company’s slate of 30th day prior to the advance notice deadline for making director nominees for nominations at the 2016 Annual Meeting, the period from the printing of the proxy statement for that Meeting until the conclusion of that Meeting; provided that in no event shall the Standstill Period extend beyond the date of the 2016 2017 Annual Meeting.
(b) During the Standstill Period, each Osmium Party shall notno member of Xxxxxxx Capital shall, directly or indirectly, and each Osmium Party member of Xxxxxxx Capital shall cause Xx. Xxxx each Xxxxxxx Capital Affiliate (as defined herein) not to, and shall use its reasonable best efforts to cause each other Osmium Affiliate and Associate of its Associates not to, directly or indirectly (it being understood and agreed that the following restrictions shall not apply to Xx. Xxxx’x discussions solely among other members of the Board and/or management New Directors (and any Replacement) acting in their capacities as a director of 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 twelve and one-half percent (12.5%) 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 person or entity that is Person (as defined herein) not a Party 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 the BoardCompany 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 Osmium Parties Xxxxxxx Capital and their Affiliates and Associates), or otherwise support or participate in any effort by a Third Party with respect to the matters set forth in Section 2(bXxxxxxx Capital Affiliates);
(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 expressly permitted in this Agreement with respect to a Replacement) propose any nominee for election to the Board or seek representation on the Board; or call or request the calling of a special meeting of stockholders or action by stockholders through written consent;
(v) 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 1(c), special meeting of stockholders or action by written consent (excluding customary brokerage accounts, margin accounts, prime brokerage accounts and the like);
(vi) make any request for the Company’s stock ledger, a stockholders list of its stockholders, materials or other books and records of the Company under Section 220 of the Delaware General Corporation Law or otherwise (provided that this clause (vi) shall not limit Xx. Xxxx’ rights to reasonably request information solely in his capacity as a director of the Company)otherwise;
(vii) in any manner, directly or indirectly, make, or cause to be made, or in any way encourage any other person to make or cause to be made, any public statement or public announcement, including in any document or report filed with or furnished to the Securities and Exchange Commission or through the press, media, analysts or other persons, that disparages, defames or slanders, or otherwise constitutes an ad hominem attack on, the Company, or the Company’s subsidiaries, Affiliates, successors, assigns, officers (including any former officer and any person who serves on or following the date of this Agreement as an officer), directors (including any former director and any person who serves on or following the date of this Agreement as a director), or employees.
(viii) 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), other than an action A) bringing litigation to enforce the provisions of this Agreement instituted in accordance Agreement, (B) making counterclaims with and subject respect to Section 7any 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;
(ix) 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 any of its subsidiaries or its or their securities or a material amount of the assets or businesses of the Company, any of the Company’s Affiliates, or any subsidiary, business, venture or division of the foregoing, or encourage, initiate or support any other Third Party in any such activity;
(x) purchase or cause to be purchased or otherwise acquire or agree to acquire Beneficial Ownership of any Voting Securities, if in any such case, immediately after the taking of such action, the Osmium Parties and their Affiliates and Associates would, in the aggregate, collectively Beneficially Own, or have an economic interest in, an amount that would exceed 16.5% of the then outstanding shares of Common Stock of the Company (the “Share Limit”); provided, however, that if the closing sales price per share of the Company’s Common Stock on the New York Stock Exchange shall be less than $6.50 per share for more than five consecutive trading days, the Share Limit shall increase to 19.9% until the closing sales price per share of the Company’s Common Stock on the New York Stock Exchange shall again be above $6.50 on any trading day, at which time it shall automatically be reduced to the then outstanding shares of Common Stock of the Company Beneficially owned by the Osmium Parties and their Affiliates and Associates as of the first date on which the closing sales price per share of the Company’s Common Stock on the New York Stock Exchange shall again be above $6.50;
(xiviii) enter into any discussions, negotiations, agreements, arrangements or understandings with any Third Party with respect to the matters set forth in this Section 2(b)2; or
(xiiix) requestcontest the 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), Section 3 and Section 18 (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) or 1(e)).
(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 2016 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 2016 Annual Meeting, and in favor of auditor ratification and “say-on-pay” proposals, and (ii) in accordance with the recommendation of the Board, provided that such recommendation is unanimous (of those voting) and includes the affirmative vote of the New Directors (and any Replacement), on any other proposals or other business that comes before such meeting (other than any proposals relating to mergers, acquisitions or other business combinations or extraordinary transactions, or any amendment or waiver to the Company’s organizational documents).
(d) If at any time following the date of this Agreement, Xxxxxxx Capital’s aggregate Net Long Position in the Common Shares is less than 5% of the foregoing in outstanding Common Shares (the “Minimum Ownership Level”), (i) Xxxxxxx Capital shall lose its right to identify an Initial New Director and a manner that would reasonably likely require public disclosure by any Osmium Party Replacement, (ii) the Company shall not be obligated to appoint the Subsequent New Director, (iii) the Company shall not be obligated to nominate the Initial New Director (or any Replacement) and/or the Subsequent New Director for election to the Board at any meeting of their respective Affiliates 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 Initial New Director (or Associates 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 CompanyBoard.
(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 Agreement (Carlson Capital L P), Agreement (Vitamin Shoppe, Inc.)
Certain Other Matters. (a) Xx. Xxxx shall So long as the Company has complied and is complying with its obligations set forth in this Agreement, from and after the date hereof until the later of (x) the conclusion of the 2013 Annual Meeting and (y) the date that an Icahn Nominee is no longer a member of the Board (it being understood that if such an Icahn Nominee is no longer a member of the Board due to circumstances in which the Icahn Group would be entitled to resign from appoint a Replacement pursuant to Section 2(a)(vi), an Icahn Nominee shall be deemed to continue to be a member of the Board at any time in his discretion. For for all purposes of this Agreement, the “Standstill Period” shall mean the period from the date of this Agreement until such time as the latest of Icahn Group irrevocably waives in writing any right to designate such a Replacement or appoints such a Replacement) (A) the six month anniversary later of the Effective Dateforegoing periods, (B) sixty days after Xx. Xxxx is the “Board Representation Period”), no longer serving as a director member of the Company, and (C) if Xx. Xxxx is a director at all times until the time nominations are due for the 2016 Annual Meeting, and is nominated and agrees to serve on the Company’s slate of director nominees for the 2016 Annual Meeting, the period from the printing of the proxy statement for that Meeting until the conclusion of that Meeting; provided that in no event shall the Standstill Period extend beyond the date of the 2016 Annual Meeting.
(b) During the Standstill Period, each Osmium Party shall notIcahn Group shall, directly or indirectly, and each Osmium Party member of the Icahn Group shall cause Xx. Xxxx and each other Osmium Icahn Affiliate and Associate not to, directly or indirectly (it being understood and agreed that the following restrictions shall not apply to Xx. Xxxx’x discussions solely among other members of the Board and/or management of 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, to the Voting Securities (as defined below), or from the holders of the Voting Securities, 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 or entity that is not a Party (a “Third Party”) 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 the BoardCompany 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 other 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 without limitation a “group” group as defined under Section 13(d) of the Exchange Act, with respect to the Voting Securities (it being understood that a Permitted Person (or Permitted Persons) as long as it is (or they are) such engaging in Permitted Activities (each as defined in the Rights Plan) shall not be deemed to be or create a “group” for the avoidance purposes of doubt, excluding any group composed solely of Osmium Parties and their Affiliates and Associatesthis clause (iii)), or otherwise support or participate in any effort by a Third Party third party with respect to the matters set forth in Section 2(b);
clause (i) above, (iv) present at any annual meeting 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 propose any nominee for election to the Board or seek representation on the Board; or call or request the calling of a special meeting of stockholders or action by stockholders through written consent;
(v) 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 1(c), special meeting of stockholders or action by written consent (excluding customary brokerage accounts, margin accounts, prime brokerage accounts and the like);
(vi) make any request for the Company’s stock ledger, a list of its stockholders, or other books and records of the Company under Section 220 of the Delaware General Corporation Law or otherwise (provided that this clause (vi) shall not limit Xx. Xxxx’ rights to reasonably request information solely in his capacity as a director of the Company);
(vii) in any manner, directly or indirectly, make, or cause to be made, or in any way encourage any other person to make or cause to be made, any public statement or public announcement, including in any document or report filed with or furnished to the Securities and Exchange Commission or through the press, media, analysts or other persons, that disparages, defames or slanders, or otherwise constitutes an ad hominem attack on, the Company, or the Company’s subsidiaries, Affiliates, successors, assigns, officers (including any former officer and any person who serves on or following the date of this Agreement as an officer), directors (including any former director and any person who serves on or following the date of this Agreement as a director), or employees.
(viii) 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 an action to enforce the provisions of this Agreement instituted in accordance with and subject to Section 7;
(ix) 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 any of its subsidiaries or its or their securities or a material amount of the assets or businesses of the Company, any of the Company’s Affiliates, or any subsidiary, business, venture or division of the foregoing, or encourage, initiate or support any other Third Party in any such activity;
(x) purchase or cause to be purchased or otherwise acquire or agree to acquire Beneficial Ownership of any Voting Securities, if in any such case, immediately after the taking of such action, the Osmium Parties and their Affiliates and Associates would, in the aggregate, collectively Beneficially Own, or have an economic interest in, an amount that would exceed 16.5% of the then outstanding shares of Common Stock of the Company (the “Share Limit”); provided, however, that if the closing sales price per share of the Company’s Common Stock on the New York Stock Exchange shall be less than $6.50 per share for more than five consecutive trading days, the Share Limit shall increase to 19.9% until the closing sales price per share of the Company’s Common Stock on the New York Stock Exchange shall again be above $6.50 on any trading day, at which time it shall automatically be reduced to the then outstanding shares of Common Stock of the Company Beneficially owned by the Osmium Parties and their Affiliates and Associates as of the first date on which the closing sales price per share of the Company’s Common Stock on the New York Stock Exchange shall again be above $6.50;
(xi) enter into any discussions, negotiations, agreements, arrangements or understandings with any Third Party with respect to the matters set forth in this Section 2(b); or
(xii) request, directly or indirectly, any amendment or waiver of the foregoing in a manner that would reasonably likely require public disclosure by any Osmium Party or any of their respective Affiliates or Associates or the Company.any
Appears in 2 contracts
Samples: Settlement Agreement, Settlement Agreement (Navistar International Corp)
Certain Other Matters. (a) Xx. Xxxx shall be entitled to resign from the Board at any time in his discretion. For purposes of this AgreementStockholder agrees that, the “Standstill Period” shall mean the period from the date of this Agreement until the latest later of (Ax) 12:01 a.m. on the six month anniversary 30th day prior to the advance notice deadline for making director nominations at the 2026 annual meeting of the Effective Date, shareholders and (By) sixty thirty days after Xx. Xxxx is no longer serving the date that the Appointee ceases to serve as a director of (the Company, and (C) if Xx. Xxxx is a director at all times until the time nominations are due for the 2016 Annual Meeting, and is nominated and agrees to serve on the Company’s slate of director nominees for the 2016 Annual Meeting, the period from the printing of the proxy statement for that Meeting until the conclusion of that Meeting; provided that in no event shall the Standstill Period extend beyond the date of the 2016 Annual Meeting.
(b) During the “Standstill Period”), each Osmium Party shall notno member of Stockholder shall, directly or indirectly, and each Osmium Party member of Stockholder shall cause Xx. Xxxx and each other Osmium Stockholder Affiliate and Associate not to, directly or indirectly (it being understood and agreed that the following restrictions shall not apply to Xx. Xxxx’x the Appointee’s boardroom discussions conducted solely among other members of the Board and/or management in such person’s capacity as a director of the Company):
(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 belowherein), 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 or entity that is not a Third Party (a “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) or (B) control or exert influence over or seek to control or exert influence over the Boardvoting of any Voting Securities as to which a Third Party that is a counterparty to any Net Long Position of Stockholder 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 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 including any group composed solely of Osmium Parties and their Affiliates and AssociatesNet Long Position), or otherwise support or participate in any effort by a Third Party with respect to the matters set forth in Section 2(b)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 propose any nominee for election to the Board or seek representation on the Board; or call or request the calling of a special meeting of stockholders or action by stockholders through written consent;
(v) sell, offer or agree to sell directly or indirectly, through swap, hedging, derivative transactions or otherwise, the securities of the Company or any rights decoupled from the underlying securities held by Stockholder 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 knowingly 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 or special meeting except as provided in Section 1(c)2(b) below, special meeting of stockholders or action by written consent (excluding customary brokerage accounts, margin accounts, prime brokerage accounts and the like);
(vivii) make any request for the Company’s stock ledger, a shareholders list of its stockholders, materials or other books and records of the Company under Section 220 of the Delaware General Corporation Law or otherwise (provided that this clause (vi) shall not limit Xx. Xxxx’ rights to reasonably request information solely in his capacity as a director of the Company)otherwise;
(vii) in any manner, directly or indirectly, make, or cause to be made, or in any way encourage any other person to make or cause to be made, any public statement or public announcement, including in any document or report filed with or furnished to the Securities and Exchange Commission or through the press, media, analysts or other persons, that disparages, defames or slanders, or otherwise constitutes an ad hominem attack on, the Company, or the Company’s subsidiaries, Affiliates, successors, assigns, officers (including any former officer and any person who serves on or following the date of this Agreement as an officer), directors (including any former director and any person who serves on or following the date of this Agreement as a director), or employees.
(viii) 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 an action to enforce the provisions for purposes of enforcement of this Agreement instituted in accordance with and subject to Section 7Agreement);
(ix) 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 recapitalization, extraordinary dividend, significant share repurchase, or any similar transaction or other business combination involving the Company or any of its subsidiaries or its or their securities or a material amount of the assets or businesses of the Company, any of the Company’s Affiliates, or any subsidiary, business, venture or division of the foregoing, or encourage, initiate or support any other Third Party in any such activity;
(x) purchase or cause to be purchased or otherwise acquire or agree to acquire Beneficial Ownership of any Voting Securities, if in any such case, immediately after the taking of such action, the Osmium Parties and their Affiliates and Associates Stockholder would, in the aggregate, collectively Beneficially Ownbeneficially own, or have an economic interest in, an amount that would exceed 16.5% twenty percent (20.0%) of the then outstanding shares of Common Stock of the Company (the “Share Limit”); provided, however, that if the closing sales price per share of the Company’s Common Stock on the New York Stock Exchange shall be less than $6.50 per share for more than five consecutive trading days, the Share Limit shall increase to 19.9% until the closing sales price per share of the Company’s Common Stock on the New York Stock Exchange shall again be above $6.50 on any trading day, at which time it shall automatically be reduced to the then outstanding shares of Common Stock of the Company Beneficially owned by the Osmium Parties and their Affiliates and Associates as of the first date on which the closing sales price per share of the Company’s Common Stock on the New York Stock Exchange shall again be above $6.50Stock;
(xi) take any action, alone or with a Third Party, in support of or make any proposal or request, other than through the Appointee, that constitutes (A) controlling, changing or influencing the Board or management of the Company, including any plans or proposals to change the number of directors or to fill any vacancies on the Board, (B) any material change in the capitalization, share 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 waive or make amendments or modifications to the Company’s certificate of incorporation or bylaws;
(xii) enter into any discussions, negotiations, agreements, arrangements or understandings with any Third Party with respect to the matters set forth in this Section 2(b2(a); or;
(xiixiii) request, directly or indirectly, any amendment or waiver of the foregoing in a manner that which request would reasonably likely require public disclosure by any Osmium Party or any of their respective Affiliates or Associates Stockholder or the Company; or
(xiv) contest the validity of, or publicly request any waiver of, the obligations set forth in this Section 2(a).
(b) Until the end of the Standstill Period, Stockholder and the Stockholder 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 any annual or special meeting of stockholders or in connection with any solicitation of shareholder action by written consent (each a “Shareholders Meeting”) within the Standstill Period, in each case that are entitled to vote at any such Shareholders Meeting, to be present for quorum purposes and to be voted, at all such Shareholders Meetings or at any adjournments or postponements thereof, (i) for all directors nominated by the Board for election at such Shareholders Meeting and (ii) in accordance with the recommendation of the Board on any other proposals or other business that comes before any Shareholder Meeting, including with respect to the 2025 Annual Meeting and, if the Standstill Period is extended and in effect pursuant to Section 1(f)(ii), the 2026 Annual Meeting.
Appears in 2 contracts
Samples: Support Agreement (NOODLES & Co), Support Agreement (Hoak Public Equities, LP)
Certain Other Matters. (a) Xx. Xxxx shall be entitled to resign from the Board at any time in his discretion. For purposes of this Agreement, the “Standstill Period” shall mean the period from the date of this Agreement until 12:01 a.m., Eastern time, on the latest of 15th business day prior to the advance notice deadline for making director nominations (A) the six month anniversary of the Effective Date, (B) sixty days after Xx. Xxxx is no longer serving as a director of the Company, and (C) if Xx. Xxxx is a director at all times until the time nominations are due for the 2016 Annual Meeting, and is nominated and agrees calculated pursuant to serve on the Company’s slate of director nominees for the 2016 Annual Meeting, the period from the printing of the proxy statement for that Meeting until the conclusion of that Meeting; provided that bylaws in no event shall the Standstill Period extend beyond effect on the date of the 2016 Agreement) at the Company’s 2020 annual meeting of stockholders (the “2020 Annual Meeting”).
(b) During the Standstill Period, each Osmium Party shall notno member of Vintage Capital shall, directly or indirectly, and each Osmium Party shall cause Xx. Xxxx and each other Osmium Affiliate and Associate not to, directly or indirectly (it being understood and agreed that the following restrictions shall not apply to Xx. Xxxx’x discussions solely among other members of the Board and/or management of the Company)::
(i) solicit (A) nominate, give notice of an intent to nominate, or recommend for nomination a person for election at any meeting of the Company’s stockholders at which directors are to be elected, it being understood that nothing in this Agreement will prevent Vintage Capital or its Affiliates from taking actions in furtherance of identifying director candidates in connection with the 2020 Annual Meeting so long as such actions do not create a public disclosure obligation for Vintage Capital or the Company, are not publicly disclosed by Vintage Capital and are undertaken on a basis reasonably designed to be confidential and in accordance in all material respects with Vintage Capital’s normal practices in the circumstances; (B) initiate, encourage or participate in any solicitation of proxies in respect of any election contest with respect to the Company’s directors; (C) submit any stockholder proposal (pursuant to Rule 14a-8 under the Exchange Act or otherwise) for consideration at, or bring any other business before, any meeting of the Company’s stockholders; (D) initiate, encourage or participate in any solicitation of proxies in respect of any stockholder proposal for consideration at, or bring any other business before, any meeting of the Company’s stockholders; (E) initiate, encourage or participate in any “withhold” or similar campaign with respect to any meeting of the Company’s stockholders or any solicitation of written consents of stockholders or conduct any other type of referendum the Company’s stockholders; (binding or non-bindingF) with respect torequest, or from the holders ofinitiate, the Voting Securities (as defined below), encourage 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 or entity that is not a Party (a “Third Party”) participate in any “solicitation” of any proxyrequest to call, consent or other authority (as such terms are defined under the Exchange Act) to vote any shares a special meeting of the Voting Securities Company’s stockholders; or (other than such encouragementG) seek, advice alone or influence that is consistent in concert with others, to amend any provision of the BoardCompany’s recommendation in connection with such matter)certificate of incorporation or bylaws;
(ii) with respect to the Company, knowingly encourage, advise or influence any other person Person or assist any Third Party other Person in so knowingly 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);
(iii) other than solely with other members of Vintage Capital and their Affiliates, (A) 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 including any group composed solely with Shah Capital and its Affiliates) or (B) deposit any securities of Osmium Parties and their Affiliates and Associates)the Company into a voting trust, or otherwise support subject any securities of the Company to any agreement or participate in any effort by a Third Party arrangement with respect to the matters set forth voting of such securities (other than delivering to the Company or its designee a proxy in Section 2(bconnection with a solicitation made by or on behalf of the Company);
(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 propose any nominee for election to the Board or seek representation on the Board; or call or request the calling of a special meeting of stockholders or action by stockholders through written consent;
(v) 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 1(c), special meeting of stockholders or action by written consent (excluding customary brokerage accounts, margin accounts, prime brokerage accounts and the like);
(vi) make any request for the Company’s stock ledger, a stockholders list of its stockholders, materials or other books and records of the Company under Section 220 of the Delaware General Corporation Law or otherwise (provided that this clause (vi) shall not limit Xx. Xxxx’ rights to reasonably request information solely in his capacity as a director of the Company)otherwise;
(vii) in any manner, directly or indirectly, make, or cause to be made, or in any way encourage any other person to make or cause to be made, any public statement or public announcement, including in any document or report filed with or furnished to the Securities and Exchange Commission or through the press, media, analysts or other persons, that disparages, defames or slanders, or otherwise constitutes an ad hominem attack on, the Company, or the Company’s subsidiaries, Affiliates, successors, assigns, officers (including any former officer and any person who serves on or following the date of this Agreement as an officer), directors (including any former director and any person who serves on or following the date of this Agreement as a director), or employees.
(viiiv) 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 any member of Vintage Capital from (including derivative actions), other than an action A) bringing litigation to enforce the provisions of this Agreement instituted in accordance Agreement; (B) making counterclaims with and respect to any proceeding initiated by, or on behalf of, the Company against Vintage Capital; (C) bringing bona fide commercial disputes that do not relate to the subject to Section 7matter of this Agreement; (D) complying with a validly issued legal process; or (E) exercising statutory appraisal rights;
(ixvi) without the prior approval of the Boardmake any public recommendation or other public statement with respect to mergers, 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 acquisitions or other business combination combinations or extraordinary transactions involving the Company (“Extraordinary Transactions”) or solicit or knowingly encourage any of its subsidiaries third party to make an offer or its proposal with respect to any Extraordinary Transaction (or their securities or a material amount of the assets or businesses of the Company, any of the Company’s Affiliates, or any subsidiary, business, venture or division of the foregoing, or encourage, initiate or support any other Third Party in any such activityto refrain from doing so);
(x) purchase or cause to be purchased or otherwise acquire or agree to acquire Beneficial Ownership of any Voting Securities, if in any such case, immediately after the taking of such action, the Osmium Parties and their Affiliates and Associates would, in the aggregate, collectively Beneficially Own, or have an economic interest in, an amount that would exceed 16.5% of the then outstanding shares of Common Stock of the Company (the “Share Limit”); provided, however, that if the closing sales price per share of the Company’s Common Stock on the New York Stock Exchange shall be less than $6.50 per share for more than five consecutive trading days, the Share Limit shall increase to 19.9% until the closing sales price per share of the Company’s Common Stock on the New York Stock Exchange shall again be above $6.50 on any trading day, at which time it shall automatically be reduced to the then outstanding shares of Common Stock of the Company Beneficially owned by the Osmium Parties and their Affiliates and Associates as of the first date on which the closing sales price per share of the Company’s Common Stock on the New York Stock Exchange shall again be above $6.50;
(xivii) enter into any discussions, negotiations, agreements, arrangements or understandings with any Third Party other Person with respect to the matters set forth in this Section 2(b); or
(xiiviii) requestcontest the validity of, directly or indirectlypublicly 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 amendment or waiver period that the Company is not in material compliance with its obligations under Section 1 and Section 18 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 Section 1.
(c) At the 2018 Annual Meeting and the 2019 Annual Meeting, and at any meeting of stockholders held prior to the expiration of the foregoing Standstill Period, Vintage Capital shall cause all Voting Securities that are Beneficially Owned by it (i) to be present for purposes of establishing a quorum and (ii) to be voted in a manner favor of the election of all director candidates nominated by the Board and otherwise in accordance with the Board’s recommendation, including in favor of each other matter recommended for stockholder approval by the Board; provided, that would reasonably likely require public disclosure solely with respect to any meeting after the 2018 Annual Meeting, Vintage Capital may vote such Voting Securities in its sole discretion on each matter other than proposals relating to the election of directors (for which Vintage Capital shall vote as recommended by the Board).
(d) If at any Osmium Party time following the date of this Agreement, Vintage Capital’s aggregate Net Long Position in the Common Shares is less than 5% of the then-outstanding Common Shares (the “Minimum Ownership Level”), (i) Vintage Capital shall lose its right to identify the Vintage Designee (and his/her Replacement), (ii) the Company shall not be obligated to appoint the Vintage Designee, (iii) the Company shall not be obligated to nominate the Vintage Designee (or any respective Replacement) for election to the Board at any meeting of their stockholders at which directors are to be elected occurring after the time at which Vintage Capital no longer satisfies the Minimum Ownership Level and (iv) the Vintage Designee (or any respective Affiliates or Associates or Replacement) shall, if requested by the CompanyBoard, immediately resign from the Board and all committees thereof. Prior to appointment to the Board, each Vintage Designee and any Replacement shall execute an irrevocable resignation pursuant to which, if such resignation is requested, such person shall resign at such time at which Vintage Capital no longer satisfies the Minimum Ownership Level.
(e) The Company shall publicly issue its financial results for the first quarter of 2018 no later than May 9, 2018.
Appears in 1 contract
Certain Other Matters. (a) Xx. Xxxx shall be entitled to resign So long as the Company has complied and is complying with its obligations set forth in this Amendment, from the Board at any time in his discretion. For purposes of this Agreement, the “Standstill Period” shall mean the period from and after the date of this Amendment until the later of (x) the first business day following the 2014 Annual Meeting and (y) the 10th business day following the date that no MHR Nominee is a member of the Board (it being understood that if no MHR Nominee is a member of the Board due to circumstances in which the MHR Group would be entitled to designate a Replacement pursuant to Section 1(c)(iii), an MHR Nominee shall be deemed to continue to be a member of the Board for all purposes of this Agreement until such time as the latest of MHR Group irrevocably waives in writing any right to designate such a Replacement or designates such a Replacement) (A) the six month anniversary later of the Effective Dateforegoing periods, (B) sixty days after Xx. Xxxx is the “Board Representation Period”), except as expressly permitted by the terms of this Amendment, no longer serving as a director member of the Company, and (C) if Xx. Xxxx is a director at all times until the time nominations are due for the 2016 Annual Meeting, and is nominated and agrees to serve on the Company’s slate of director nominees for the 2016 Annual Meeting, the period from the printing of the proxy statement for that Meeting until the conclusion of that Meeting; provided that in no event shall the Standstill Period extend beyond the date of the 2016 Annual Meeting.
(b) During the Standstill Period, each Osmium Party shall notMHR Group shall, directly or indirectly, and each Osmium Party member of the MHR Group shall cause Xx. Xxxx and each other Osmium MHR Affiliate and Associate not to, directly or indirectly (it being understood and agreed that the following restrictions shall not apply to Xx. Xxxx’x discussions solely among other members of the Board and/or management of 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, to the Voting Securities (as defined below), or from the holders of the Voting Securities, 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 or entity that is not a Party (a “Third Party”) 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 the BoardCompany 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 other 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 without limitation a “group” group as defined under Section 13(d) of the Exchange Act, with respect to the Voting Securities (it being understood that a Permitted Person (or Permitted Persons), as long as it is (or they are) such, engaging in Permitted Activities (each as defined in the Rights Agreement) shall not be deemed to be or create a partnership, limited partnership, syndicate or other group, including without limitation a group as defined under Section 13(d) of the Exchange Act, for the avoidance purposes of doubt, excluding any group composed solely of Osmium Parties and their Affiliates and Associatesthis clause (iii)), or otherwise support or participate in any effort by a Third Party third party with respect to the matters set forth in Section 2(b);
clause (i) above, (iv) present at any annual meeting 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) propose any nominee for election to the Board, other than through action at the Board by any MHR Nominee acting in his or seek representation on the Board; or call or request the calling of a special meeting of stockholders or action by stockholders through written consent;
her capacity as such, (v) 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 stockholdersstockholders (an “Annual Meeting”)) or deposit any of the Voting Securities of held by the Company MHR Group or the MHR Affiliates in a voting trust or subject them to a voting agreement or other arrangement of similar effect with respect to any annual meeting Annual Meeting except as provided in Section 1(c)2(b) below, special meeting of stockholders or action by written consent (excluding customary brokerage accounts, margin accounts, prime brokerage accounts and the like);
(vi) make any request for the Company’s stock ledger, a list of its stockholders, or other books and records of the Company under Section 220 of the Delaware General Corporation Law or otherwise (provided that this clause (vi) shall not limit Xx. Xxxx’ rights to reasonably request information solely in his capacity as a director of the Company);
Law, (vii) in any manner, directly or indirectly, make, or cause to be made, by press release or in any way encourage any other person similar public statement to make the press or cause to be mademedia, any public statement or public announcement, including in any document or report filed with or furnished to the Securities and Exchange Commission or through the press, media, analysts or other persons, that disparages, defames or slanders, or otherwise constitutes an ad hominem attack on, the Company, or the Company’s subsidiaries, Affiliates, successors, assigns, officers (including any former officer and any person who serves on or following the date of this Agreement as an officer), directors (including any former director and any person who serves on or following the date of this Agreement as a director), or employees.
(viii) 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 an action to enforce the provisions of this Agreement instituted in accordance with and subject to Section 7;
(ix) 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 any of its subsidiaries or its or their securities or a material amount of the assets or businesses of the Company, any of the Company’s Affiliates, or any subsidiary, business, venture or division of the foregoing, or encourage, initiate or support any other Third Party in any such activity;
(x) purchase or cause to be purchased or otherwise acquire or agree to acquire Beneficial Ownership of any Voting Securities, if in any such case, immediately after the taking of such action, the Osmium Parties and their Affiliates and Associates would, in the aggregate, collectively Beneficially Own, or have an economic interest in, an amount that would exceed 16.5% of the then outstanding shares of Common Stock of the Company (the “Share Limit”); provided, however, that if the closing sales price per share of the Company’s Common Stock on the New York Stock Exchange shall be less than $6.50 per share for more than five consecutive trading days, the Share Limit shall increase to 19.9% until the closing sales price per share of the Company’s Common Stock on the New York Stock Exchange shall again be above $6.50 on any trading day, at which time it shall automatically be reduced to the then outstanding shares of Common Stock of the Company Beneficially owned by the Osmium Parties and their Affiliates and Associates as of the first date on which the closing sales price per share of the Company’s Common Stock on the New York Stock Exchange shall again be above $6.50;
(xi) enter into any discussions, negotiations, agreements, arrangements or understandings with any Third Party with respect to the matters set forth in this Section 2(b); or
(xii) request, directly or indirectly, any amendment or waiver of the foregoing in a manner that would reasonably likely require public disclosure by any Osmium Party or any of their respective Affiliates or Associates or the Company.
Appears in 1 contract
Certain Other Matters. (a) Xx. Xxxx shall So long as the Company has complied and is complying with its obligations set forth in this Agreement, from and after the date hereof until the later of (x) the conclusion of the 2013 Annual Meeting and (y) the date that an MHR Nominee is no longer a member of the Board (it being understood that if such an MHR Nominee is no longer a member of the Board due to circumstances in which the MHR Group would be entitled to resign from appoint a Replacement pursuant to Section 2(a)(vi), an MHR Nominee shall be deemed to continue to be a member of the Board at any time in his discretion. For for all purposes of this Agreement, the “Standstill Period” shall mean the period from the date of this Agreement until such time as the latest of MHR Group irrevocably waives in writing any right to designate such a Replacement or appoints such a Replacement) (A) the six month anniversary later of the Effective Dateforegoing periods, (B) sixty days after Xx. Xxxx is the “Board Representation Period”), no longer serving as a director member of the Company, and (C) if Xx. Xxxx is a director at all times until the time nominations are due for the 2016 Annual Meeting, and is nominated and agrees to serve on the Company’s slate of director nominees for the 2016 Annual Meeting, the period from the printing of the proxy statement for that Meeting until the conclusion of that Meeting; provided that in no event shall the Standstill Period extend beyond the date of the 2016 Annual Meeting.
(b) During the Standstill Period, each Osmium Party shall notMHR Group shall, directly or indirectly, and each Osmium Party member of the MHR Group shall cause Xx. Xxxx and each other Osmium MHR Affiliate and Associate not to, directly or indirectly (it being understood and agreed that the following restrictions shall not apply to Xx. Xxxx’x discussions solely among other members of the Board and/or management of 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, to the Voting Securities (as defined below), or from the holders of the Voting Securities, 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 or entity that is not a Party (a “Third Party”) 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 the BoardCompany 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 other 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 without limitation a “group” group as defined under Section 13(d) of the Exchange Act, with respect to the Voting Securities (it being understood that a Permitted Person (or Permitted Persons) as long as it is (or they are) such engaging in Permitted Activities (each as defined in the Rights Plan) shall not be deemed to be or create a “group” for the avoidance purposes of doubt, excluding any group composed solely of Osmium Parties and their Affiliates and Associatesthis clause (iii)), or otherwise support or participate in any effort by a Third Party with respect to the matters set forth in Section 2(b);
(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 propose any nominee for election to the Board or seek representation on the Board; or call or request the calling of a special meeting of stockholders or action by stockholders through written consent;
(v) 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 1(c), special meeting of stockholders or action by written consent (excluding customary brokerage accounts, margin accounts, prime brokerage accounts and the like);
(vi) make any request for the Company’s stock ledger, a list of its stockholders, or other books and records of the Company under Section 220 of the Delaware General Corporation Law or otherwise (provided that this clause (vi) shall not limit Xx. Xxxx’ rights to reasonably request information solely in his capacity as a director of the Company);
(vii) in any manner, directly or indirectly, make, or cause to be made, or in any way encourage any other person to make or cause to be made, any public statement or public announcement, including in any document or report filed with or furnished to the Securities and Exchange Commission or through the press, media, analysts or other persons, that disparages, defames or slanders, or otherwise constitutes an ad hominem attack on, the Company, or the Company’s subsidiaries, Affiliates, successors, assigns, officers (including any former officer and any person who serves on or following the date of this Agreement as an officer), directors (including any former director and any person who serves on or following the date of this Agreement as a director), or employees.
(viii) 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 an action to enforce the provisions of this Agreement instituted in accordance with and subject to Section 7;
(ix) 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 any of its subsidiaries or its or their securities or a material amount of the assets or businesses of the Company, any of the Company’s Affiliates, or any subsidiary, business, venture or division of the foregoing, or encourage, initiate or support any other Third Party in any such activity;
(x) purchase or cause to be purchased or otherwise acquire or agree to acquire Beneficial Ownership of any Voting Securities, if in any such case, immediately after the taking of such action, the Osmium Parties and their Affiliates and Associates would, in the aggregate, collectively Beneficially Own, or have an economic interest in, an amount that would exceed 16.5% of the then outstanding shares of Common Stock of the Company (the “Share Limit”); provided, however, that if the closing sales price per share of the Company’s Common Stock on the New York Stock Exchange shall be less than $6.50 per share for more than five consecutive trading days, the Share Limit shall increase to 19.9% until the closing sales price per share of the Company’s Common Stock on the New York Stock Exchange shall again be above $6.50 on any trading day, at which time it shall automatically be reduced to the then outstanding shares of Common Stock of the Company Beneficially owned by the Osmium Parties and their Affiliates and Associates as of the first date on which the closing sales price per share of the Company’s Common Stock on the New York Stock Exchange shall again be above $6.50;
(xi) enter into any discussions, negotiations, agreements, arrangements or understandings with any Third Party with respect to the matters set forth in this Section 2(b); or
(xii) request, directly or indirectly, any amendment or waiver of the foregoing in a manner that would reasonably likely require public disclosure by any Osmium Party or any of their respective Affiliates or Associates or the Company.
Appears in 1 contract
Certain Other Matters. (a) Xx. Xxxx The Teleios Designee 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 latest of (A) the six month anniversary of the Effective Date, (B) sixty days after Xx. Xxxx is no longer serving as a director of the Company, and (C) if Xx. Xxxx is a director at all times until the time nominations are due for the 2016 Annual Meeting, and is nominated and agrees to serve on the Company’s slate of director nominees for the 2016 Annual Meeting, the period from the printing of the proxy statement for that Meeting until the conclusion of that Meeting; provided that in no event shall the Standstill Period extend beyond the date of the 2016 Annual Meeting.
(b) During the Standstill Period, each Osmium Party shall notneither Teleios nor any of its Affiliates shall, directly or indirectly, and each Osmium Party shall cause Xx. Xxxx and each other Osmium Affiliate and Associate not to, directly or indirectly (it being understood and agreed that the following restrictions shall not apply to Xx. Xxxx’x discussions solely among other members of the Board and/or management of the Company)::
(i) solicit proxies make or written consents of stockholders or conduct in 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 or entity that is not a Party (a “Third Party”) way participate in any “solicitation” of any proxy, consent or other authority (as such terms are defined under the Exchange Act) “proxies” to vote or seek to advise, encourage or influence any shares person with respect to the voting of any Voting Securities of the Voting Securities Company, including by way of publishing any position paper pursuant to the Israeli Companies Law, 1999 and the rules and regulations promulgated thereunder or similar public statement (other than such encouragementadvice, advice encouragement or influence that is consistent with the Board’s recommendation in connection with such matter);
(ii) encourageacquire or agree to acquire or make any proposal to acquire, advise directly or influence any other person or assist any Third Party in so encouragingindirectly, assisting or influencing any person with respect to the giving or withholding Beneficial Ownership of any proxyVoting Securities that would exceed 12.99% of the Company’s outstanding Voting Securities (the “Beneficial Ownership Limitation”), consent or other authority provided that Teleios shall not be required to vote or divest of any Voting Securities and shall not be in conducting any type breach of referendum this subsection (other than b)(ii) in the event that Teleios Beneficially Owns Voting Securities in excess of the Beneficial Ownership Limitation due to a decrease in the number the Company’s outstanding Voting Securities due to actions taken by the Company, such encouragement, advice or influence that is consistent with Company management’s recommendation in connection with such matter)as a repurchase of Ordinary Shares;
(iii) form or join in a partnership, limited partnership, syndicate or other group, including a “group” as group (defined under Section 13(d) of the Exchange Act) for the purpose of acquiring, with respect to the holding, voting or disposing of Voting Securities (for the avoidance of doubt, excluding any group composed solely of Osmium Parties Teleios and their Affiliates and Associates), or otherwise support or participate in any effort by a Third Party with respect to the matters set forth in Section 2(bits Affiliates);
(iv) present at call or seek to have called any annual meeting or any special meeting of the Company’s stockholders shareholders (each a “Shareholders Meeting”) or through action by written consent present or seek to present at any Shareholders Meeting any proposal for consideration for action by stockholders shareholders or seek for discussion only by the removal of any member of the Board or propose any nominee for election to the Board or seek representation on the Board; or call or request the calling of a special meeting of stockholders or action by stockholders through written consentshareholders;
(v) 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 1(c), special meeting of stockholders or action by written consent (excluding customary brokerage accounts, margin accounts, prime brokerage accounts and the like);
(vi) make any request for the Company’s stock ledger, a list of its stockholders, or other books and records of the Company under Section 220 of the Delaware General Corporation Law or otherwise (provided that this clause (vi) shall not limit Xx. Xxxx’ rights to reasonably request information solely in his capacity as a director of the Company);
(vii) in any manner, directly or indirectly, make, or cause to be made, or in any way encourage any other person to make or cause to be made, any public statement or public announcement, including in any document or report filed with or furnished to the Securities and Exchange Commission or through the press, media, analysts or other persons, that disparages, defames or slanders, or otherwise constitutes an ad hominem attack on, the Company, or the Company’s subsidiaries, Affiliates, successors, assigns, officers (including any former officer and any person who serves on or following the date of this Agreement as an officer), directors (including any former director and any person who serves on or following the date of this Agreement as a director), or employees.
(viii) 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 an action to enforce the provisions of this Agreement instituted in accordance with and subject to Section 7;
(ix) 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 any of Company, its subsidiaries or its or their securities or a material amount of the assets or businesses of the Company, any of the Company’s Affiliates, Company or any subsidiary, business, venture or division of the foregoing, its subsidiaries or encourage, initiate or support any other to any person or entity not a party to this Agreement (a “Third Party Party”) in any such activity;
(xvi) purchase make, or cause to be purchased made, any statement or announcement that relates to and constitutes an ad hominem attack on, or relates to and otherwise acquire or agree to acquire Beneficial Ownership of any Voting Securities, if in any such case, immediately after the taking of such actiondisparages, the Osmium Parties and Company, its subsidiaries, its or their Affiliates and Associates wouldofficers, in the aggregatedirectors, collectively Beneficially Ownemployees, or have representatives or any person who has served as an economic interest inofficer, an amount that would exceed 16.5% of the then outstanding shares of Common Stock director, employee, or representative of the Company (or its subsidiaries in the “Share Limit”); providedpast, howeveror who serves on or following the date of this Agreement as an officer, that if the closing sales price per share of the Company’s Common Stock on the New York Stock Exchange shall be less than $6.50 per share for more than five consecutive trading daysdirector, the Share Limit shall increase to 19.9% until the closing sales price per share of the Company’s Common Stock on the New York Stock Exchange shall again be above $6.50 on any trading dayemployee, at which time it shall automatically be reduced to the then outstanding shares of Common Stock or representative of the Company Beneficially owned by or its subsidiaries: (x) in any document or report filed with or furnished to the Osmium Parties and their Affiliates and Associates as SEC or any other governmental agency, (y) in any press release or other publicly available format, or (z) to any analyst, journalist or member of the first date on which media (including without limitation, in a television, radio, newspaper or magazine interview), provided that Teleios shall be free to respond truthfully, and make any truthful statement and announcement, and provide information, if so requested by any governmental authority, or to the closing sales price per share of the Company’s Common Stock on the New York Stock Exchange shall again be above $6.50extent required to comply with any applicable laws;
(xivii) enter into any discussions, negotiations, agreements, arrangements or understandings with any Third Party with respect to any of the matters set forth foregoing, or knowingly advise, assist or encourage any Third Party in this Section 2(b)connection with any of the foregoing; or
(xiiviii) requestotherwise seek to control or influence the Company or the Board except as otherwise permitted by this Agreement.
(c) Teleios and the Teleios Affiliates may vote their shares in their respective sole discretion; provided, directly or indirectlyhowever, any amendment or waiver that until the end of the foregoing in a manner Standstill Period, Teleios and the Teleios Affiliates shall abstain or vote against any item on the agenda of any Shareholders Meeting that would reasonably likely require public disclosure was proposed by any Osmium Party shareholder of the Company and in respect of which the Board has not recommended a “for” vote.
(d) Notwithstanding anything in this Section 2 to the contrary, this Section 2 shall not prohibit or any restrict (i) the Teleios Designee from taking actions solely in his capacity as a director of their respective Affiliates the Company consistent with his fiduciary duties, or Associates or (ii) the Companyexercise by Teleios of its rights and obligations expressly provided for in this Agreement.
(e) As used in this Agreement:
Appears in 1 contract
Certain Other Matters. (a) Xx. Xxxx shall be entitled to The parties acknowledge that an Icahn Designee may resign from the Board at any time in his discretionby giving prior written notice to the Board. For so long as any 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, the “Standstill Period” shall mean the period from the date of this Agreement until such time as the latest of Icahn Group irrevocably waives in writing any right to designate such a Replacement or appoints such a Replacement) (A) the six month anniversary “Board Representation Period”), no member of the Effective Date, (B) sixty days after Xx. Xxxx is no longer serving as a director of the Company, and (C) if Xx. Xxxx is a director at all times until the time nominations are due for the 2016 Annual Meeting, and is nominated and agrees to serve on the Company’s slate of director nominees for the 2016 Annual Meeting, the period from the printing of the proxy statement for that Meeting until the conclusion of that Meeting; provided that in no event shall the Standstill Period extend beyond the date of the 2016 Annual Meeting.
(b) During the Standstill Period, each Osmium Party shall notIcahn Group shall, directly or indirectly, and each Osmium Party member of the Icahn Group shall cause Xx. Xxxx and each other Osmium Icahn Affiliate and Associate not to, directly or indirectly (it being understood and agreed that the following restrictions shall not apply to Xx. Xxxx’x discussions solely among other members of the Board and/or management any Icahn Designee or Replacement in such person’s capacity as a director of 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 person or entity that is not a Party (a “Third Party”) 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 the BoardCompany 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 doubt, excluding any group composed solely of Osmium Parties and their Affiliates and Associates)Securities, or otherwise support or participate in any effort by a Third Party third party with respect to the matters set forth in Section 2(b)clause (i) above;
(iv) present at any annual meeting 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) propose any nominee for election to the Board or seek representation on the Board or the removal of any member of the Board; , other than through action at the Board by an Icahn Designee acting in his or call or request the calling of a special meeting of stockholders or action by stockholders through written consenther capacity as such;
(v) 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 stockholdersstockholders (an “Annual 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 Annual Meeting except as provided in Section 1(c)2(b) below, special meeting of stockholders or action by written consent (excluding customary brokerage accounts, margin accounts, prime brokerage accounts and the like);
(vi) make any request for the Company’s stock ledger, a list of its stockholders, or other books and records of the Company under Section 220 of the Delaware General Corporation Law or otherwise (provided that this clause (vi) shall not limit Xx. Xxxx’ rights to reasonably request information solely in his capacity as a director of the Company)Law;
(vii) in any manner, directly or indirectly, make, or cause to be made, by press release or similar public statement to the press or media, or in an SEC filing, any way encourage statement or announcement that disparages (as distinct from objective statements reflecting business criticism), the Company, its officers or its directors or any other person to make who has served as an officer or director of the Company in the past (and the Company shall not make, or cause to be made, by press release or similar public statement, including to the press or media or in an SEC filing, any public statement or public announcementannouncement that disparages (as distinct from objective statements reflecting business criticism), including in any document member of the Icahn Group, the officers or report filed with or furnished to directors of any member of the Securities and Exchange Commission or through the press, media, analysts or other persons, that disparages, defames or slandersIcahn Group, or otherwise constitutes an ad hominem attack on, the Company, or the Company’s subsidiaries, Affiliates, successors, assigns, officers (including any former officer and any person who serves on or following the date of this Agreement has served as an officerofficer or director of any member of the Icahn Group in the past), directors (including any former director and any person who serves on or following the date of this Agreement as a director), or employees.;
(viii) 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 an action to enforce the provisions of this Agreement instituted in accordance with and subject to Section 7;
(ix) without other than pursuant to a Qualifying Offer (as such term is defined in the prior approval Rights Agreement dated as of August 27, 2012, between the Company and Computershare Shareowner Services LLC) or any other transaction approved by 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 any of its subsidiaries or its or their securities or a material amount of the assets or businesses of the Company, any of the Company’s Affiliates, or any subsidiary, business, venture or division of the foregoing, or encourage, initiate or support any other Third Party in any such activity;
(x) purchase or cause to be purchased or otherwise acquire or agree to acquire Beneficial Ownership of any Voting Securities, if in any such case, immediately after the taking of such action, the Osmium Parties and their Affiliates and Associates would, Securities that would equal or exceed (in the aggregate, collectively Beneficially Own, or have an economic interest in, an amount that would exceed 16.5aggregate with all other members of the Icahn Group and all Icahn Affiliates) the greater of (x) 15% of the then total outstanding shares Voting Securities and (y) the percentage of Common Stock the then total outstanding Voting Securities acquired by any other Person under circumstances in which the Board has waived or carved out by exception or similar devices the applicability of either any Rights Plan (as hereafter defined) currently in effect or which the Company hereafter adopts or Section 203 of the Delaware General Corporation Law 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); provided that, notwithstanding any other provision herein to the contrary, if the Board Representation Period has expired prior to the 365th day following the date of this Agreement, this clause (ix) shall remain in effect through the 365th day following the date of this Agreement. 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 prevent or make more difficult a hostile takeover of the Company by increasing the cost to a potential acquirer in such a takeover either through the issuance of new rights, shares of common stock or preferred stock (or any other security or device that may be issued to stockholders of the “Share Limit”); provided, however, that if the closing sales price per share Company other than ratably to all stockholders of the Company’s Common Stock on the New York Stock Exchange shall be less than $6.50 per share for more than five consecutive trading days) that carry severe redemption provisions, the Share Limit shall increase to 19.9% until the closing sales price per share of the Company’s Common Stock on the New York Stock Exchange shall again be above $6.50 on favorable purchase provisions or otherwise, and any trading day, at which time it shall automatically be reduced to the then outstanding shares of Common Stock of the Company Beneficially owned by the Osmium Parties and their Affiliates and Associates as of the first date on which the closing sales price per share of the Company’s Common Stock on the New York Stock Exchange shall again be above $6.50;
(xi) enter into any discussions, negotiations, agreements, arrangements or understandings with any Third Party with respect to the matters set forth in this Section 2(b)related rights agreement.; or
(xii) request, directly or indirectly, any amendment or waiver of the foregoing in a manner that would reasonably likely require public disclosure by any Osmium Party or any of their respective Affiliates or Associates or the Company.5
Appears in 1 contract
Samples: Nomination and Standstill Agreement (Forest Laboratories Inc)
Certain Other Matters. (a) Xx. Xxxx shall be entitled to resign from the Board at any time in his discretion. For purposes of this Agreement, the “Standstill Period” shall mean the period from the date of this Agreement until the latest of (A) the six month anniversary of the Effective Date, (B) sixty days after Xx. Xxxx is no longer serving as a director of the Company, and (C) if Xx. Xxxx is a director at all times until the time nominations are due for the 2016 Annual Meeting, and is nominated and Stockholder agrees to serve on the Company’s slate of director nominees for the 2016 Annual Meeting, the period from the printing of the proxy statement for that Meeting until the conclusion of that Meeting; provided that in no event shall the Standstill Period extend beyond the date of the 2016 Annual Meeting.
(b) During during the Standstill Period, each Osmium Party Stockholder shall not, directly or indirectly, and each Osmium Party Stockholder shall cause Xx. Xxxx and each other Osmium Stockholder Affiliate and Associate (as defined herein) not to, directly or indirectly (it being understood and agreed that the following restrictions shall not apply to Xx. Xxxx’x discussions solely among other members of the Board and/or management of 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 belowherein), or become a “participant” (as such term is defined in Instruction 3 to Item 4 of Schedule 14A promulgated under the Exchange ActAct (as defined herein)) in or assist any person or entity that is not a Third Party (a “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 the BoardCompany management’s recommendation in connection with such matter);
(ii) knowingly encourage, advise or knowingly influence any other person or assist any Third Party in so knowingly encouraging, assisting or knowingly 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 other than any such group or agreement that is with a Stockholder Affiliate and such Stockholder Affiliate is bound by the avoidance terms and conditions of doubt, excluding any group composed solely of Osmium Parties and their Affiliates and Associates), or otherwise support or participate in any effort by this Agreement as if it were a Third Party with respect to the matters set forth in Section 2(bparty hereto);
(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 propose any nominee for election to the Board or seek representation on the Board; or call or request the calling of a special meeting of stockholders or action by stockholders through written consent, except as specifically permitted in Section 1;
(v) sell, offer or agree to sell directly or indirectly, through swap, hedging, derivative transactions or otherwise, the securities of the Company or any rights decoupled from the underlying securities held by Stockholder, other than in open market sale transactions where the identity of the purchaser is not known or in underwritten widely-dispersed public offerings, to any Third Party that would knowingly result in such Third Party, together with its Affiliates, Beneficially Owning, in the aggregate, 5% or more of the shares of Common Stock outstanding at such time or would increase the Beneficial Ownership of any Third Party who, together with its Affiliates, has a Beneficial Ownership 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 or special meeting except as provided in Section 1(c)2(b) below, special meeting of stockholders or action by written consent (excluding customary brokerage accounts, margin accounts, prime brokerage accounts and the like);
(vivii) make any request for the Company’s stock ledger, a stockholder list of its stockholders, materials or other books and records of the Company under Section 220 of the Delaware General Corporation Law or otherwise (provided that this clause (vi) shall not limit Xx. Xxxx’ rights to reasonably request information solely in his capacity as a director of the Company)otherwise;
(vii) in any manner, directly or indirectly, make, or cause to be made, or in any way encourage any other person to make or cause to be made, any public statement or public announcement, including in any document or report filed with or furnished to the Securities and Exchange Commission or through the press, media, analysts or other persons, that disparages, defames or slanders, or otherwise constitutes an ad hominem attack on, the Company, or the Company’s subsidiaries, Affiliates, successors, assigns, officers (including any former officer and any person who serves on or following the date of this Agreement as an officer), directors (including any former director and any person who serves on or following the date of this Agreement as a director), or employees.
(viii) 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 an action to enforce the provisions of this Agreement instituted in accordance with and subject to Section 7;
(ix) 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 CompanyCompany (if such communication is intended to, or would reasonably be expected to, require any public disclosure of such communication) or participate inpublicly propose, effect or seek to effect, any tender offer or exchange offer, merger, acquisition, reorganization, restructuring, recapitalization recapitalization, extraordinary dividend, significant share repurchase, or any similar transaction or other business combination involving the Company or any of its subsidiaries or its or their securities or a material amount of the assets or businesses of the Company, any of the Company’s Affiliates, or any subsidiary, business, venture or division of the foregoing, or encourage, initiate knowingly encourage or knowingly support any other Third Party in any such activity; provided, however, that the foregoing shall not prohibit or restrict Stockholder from exchanging, tendering, or otherwise participating in any tender or exchange offer with respect to the Common Stock, whether or not such transaction involves a change of control of the Company, on the same basis as the other stockholders of the Company;
(xix) purchase or cause to be purchased or otherwise acquire or agree to acquire Beneficial Ownership of any Voting Securities, if in any such case, immediately after the taking of such action, the Osmium Parties and their Affiliates and Associates Stockholder would, individually or in the aggregateaggregate with Stockholder Affiliates, collectively Beneficially Own, or have an economic interest in, Beneficial Ownership of an amount that would equal or exceed 16.55.0% of the then outstanding shares of Common Stock Stock;
(x) take any action, alone or with a Third Party, in support of or make any public proposal or request that constitutes (A) controlling or changing the Company (the “Share Limit”); provided, however, that if the closing sales price per share Board or management of the Company’s Common Stock , including any plans or proposals to change the number of directors or to fill any vacancies on the New York Stock Exchange shall be less than $6.50 per Board (except as specifically permitted in Section 1), (B) any material change in the capitalization, share for more than five consecutive trading daysrepurchase programs and practices, the Share Limit shall increase to 19.9% until the closing sales price per share capital allocation programs and practices or dividend policy of the Company’s Common Stock on the New York Stock Exchange shall again be above $6.50 on , (C) any trading day, at which time it shall automatically be reduced to the then outstanding shares of Common Stock of the Company Beneficially owned by the Osmium Parties and their Affiliates and Associates as of the first date on which the closing sales price per share of other material change in the Company’s Common Stock on management, business or corporate structure or (D) seeking to have the New York Stock Exchange shall again be above $6.50Company waive or make amendments or modifications to the Company’s certificate of incorporation or bylaws;
(xi) enter into any discussions, negotiations, agreements, arrangements or understandings with any Third Party with respect to the matters set forth in take any action that is prohibited under this Section 2(b2(a); or;
(xii) request, directly or indirectly, any amendment or waiver of the foregoing in a manner that would reasonably likely require public disclosure by Stockholder or the Company; or
(xiii) contest the validity of, or publicly request any Osmium Party waiver of, the obligations set forth in this Section 2(a). Notwithstanding anything in this Agreement to the contrary, the foregoing provisions of this Section 2(a) shall not be deemed to restrict Stockholder from: (i) communicating privately with the Board or any of their respective Affiliates the Company’s officers regarding any matter, so long as such communications are not intended to, and would not reasonably be expected to, require any public disclosure of such communications or Associates (ii) taking any action necessary to comply with any law, rule or regulation or any action required by any governmental or regulatory authority or stock exchange that has jurisdiction over Stockholder. Furthermore, for the avoidance of doubt, nothing in this Agreement shall be deemed to restrict in any way the Appointee in the exercise of the Appointee’s fiduciary duties to the Company.
(b) Until the end of the Standstill Period, Stockholder and the Stockholder 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 any annual or special meeting of stockholders or in connection with any solicitation of stockholder action by written consent (each a “Stockholders Meeting”) within the Standstill Period, in each case that are entitled to vote at any such Stockholders Meeting, to be present for quorum purposes and to be voted, at all such Stockholders Meetings or at any adjournments or postponements thereof, (i) for all directors nominated by the Board for election at such Stockholders Meeting and (ii) in accordance with the recommendation of the Board on any other proposals or other business that comes before any Stockholder Meeting; provided, however, that if Institutional Shareholder Services Inc. (“ISS”) and Glass Lewis & Co. LLC (“GL”) recommend otherwise with respect to any proposals (other than as related to the election, removal or replacement of directors), Stockholder shall be permitted to vote in accordance with ISS’s and GL’s recommendation; provided, further, that Stockholder shall be permitted to vote in its sole discretion on any proposal of the Company in respect of any Extraordinary Transaction.
Appears in 1 contract
Samples: Support Agreement (Tejon Ranch Co)
Certain Other Matters. (a) Xx. Xxxx shall be entitled to resign So long as the Company has complied and is complying with its obligations set forth in this Amendment, from the Board at any time in his discretion. For purposes of this Agreement, the “Standstill Period” shall mean the period from and after the date of this Amendment until the later of (x) the first business day following the 2014 Annual Meeting and (y) the 10th business day following the date that no Icahn Nominee is a member of the Board (it being understood that if no Icahn Nominee is a member of the Board due to circumstances in which the Icahn Group would be entitled to designate a Replacement pursuant to Section 1(c)(iii), an Icahn Nominee shall be deemed to continue to be a member of the Board for all purposes of this Agreement until such time as the latest of Icahn Group irrevocably waives in writing any right to designate such a Replacement or designates such a Replacement) (A) the six month anniversary later of the Effective Dateforegoing periods, (B) sixty days after Xx. Xxxx is the “Board Representation Period”), except as expressly permitted by the terms of this Amendment, no longer serving as a director member of the Company, and (C) if Xx. Xxxx is a director at all times until the time nominations are due for the 2016 Annual Meeting, and is nominated and agrees to serve on the Company’s slate of director nominees for the 2016 Annual Meeting, the period from the printing of the proxy statement for that Meeting until the conclusion of that Meeting; provided that in no event shall the Standstill Period extend beyond the date of the 2016 Annual Meeting.
(b) During the Standstill Period, each Osmium Party shall notIcahn Group shall, directly or indirectly, and each Osmium Party member of the Icahn Group shall cause Xx. Xxxx and each other Osmium Icahn Affiliate and Associate not to, directly or indirectly (it being understood and agreed that the following restrictions shall not apply to Xx. Xxxx’x discussions solely among other members of the Board and/or management of 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, to the Voting Securities (as defined below), or from the holders of the Voting Securities, 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 or entity that is not a Party (a “Third Party”) 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 the BoardCompany 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 other 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 without limitation a “group” group as defined under Section 13(d) of the Exchange Act, with respect to the Voting Securities (it being understood that a Permitted Person (or Permitted Persons), as long as it is (or they are) such, engaging in Permitted Activities (each as defined in the Rights Agreement) shall not be deemed to be or create a partnership, limited partnership, syndicate or other group, including without limitation a group as defined under Section 13(d) of the Exchange Act, for the avoidance purposes of doubt, excluding any group composed solely of Osmium Parties and their Affiliates and Associatesthis clause (iii)), or otherwise support or participate in any effort by a Third Party third party with respect to the matters set forth in Section 2(b);
clause (i) above, (iv) present at any annual meeting 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) propose any nominee for election to the Board, other than through action at the Board by any Icahn Nominee acting in his or seek representation on the Board; or call or request the calling of a special meeting of stockholders or action by stockholders through written consent;
her capacity as such, (v) 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 stockholdersstockholders (an “Annual Meeting”)) or deposit any of the Voting Securities of held by the Company Icahn Group or the Icahn Affiliates in a voting trust or subject them to a voting agreement or other arrangement of similar effect with respect to any annual meeting Annual Meeting except as provided in Section 1(c)2(b) below, special meeting of stockholders or action by written consent (excluding customary brokerage accounts, margin accounts, prime brokerage accounts and the like);
(vi) make any request for the Company’s stock ledger, a list of its stockholders, or other books and records of the Company under Section 220 of the Delaware General Corporation Law or otherwise (provided that this clause (vi) shall not limit Xx. Xxxx’ rights to reasonably request information solely in his capacity as a director of the Company);
Law, (vii) in any manner, directly or indirectly, make, or cause to be made, by press release or in any way encourage any other person similar public statement to make the press or cause to be mademedia, any public statement or public announcement, including in any document or report filed with or furnished to the Securities and Exchange Commission or through the press, media, analysts or other persons, that disparages, defames or slanders, or otherwise constitutes an ad hominem attack on, the Company, or the Company’s subsidiaries, Affiliates, successors, assigns, officers (including any former officer and any person who serves on or following the date of this Agreement as an officer), directors (including any former director and any person who serves on or following the date of this Agreement as a director), or employees.
(viii) 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 an action to enforce the provisions of this Agreement instituted in accordance with and subject to Section 7;
(ix) 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 any of its subsidiaries or its or their securities or a material amount of the assets or businesses of the Company, any of the Company’s Affiliates, or any subsidiary, business, venture or division of the foregoing, or encourage, initiate or support any other Third Party in any such activity;
(x) purchase or cause to be purchased or otherwise acquire or agree to acquire Beneficial Ownership of any Voting Securities, if in any such case, immediately after the taking of such action, the Osmium Parties and their Affiliates and Associates would, in the aggregate, collectively Beneficially Own, or have an economic interest in, an amount that would exceed 16.5% of the then outstanding shares of Common Stock of the Company (the “Share Limit”); provided, however, that if the closing sales price per share of the Company’s Common Stock on the New York Stock Exchange shall be less than $6.50 per share for more than five consecutive trading days, the Share Limit shall increase to 19.9% until the closing sales price per share of the Company’s Common Stock on the New York Stock Exchange shall again be above $6.50 on any trading day, at which time it shall automatically be reduced to the then outstanding shares of Common Stock of the Company Beneficially owned by the Osmium Parties and their Affiliates and Associates as of the first date on which the closing sales price per share of the Company’s Common Stock on the New York Stock Exchange shall again be above $6.50;
(xi) enter into any discussions, negotiations, agreements, arrangements or understandings with any Third Party with respect to the matters set forth in this Section 2(b); or
(xii) request, directly or indirectly, any amendment or waiver of the foregoing in a manner that would reasonably likely require public disclosure by any Osmium Party or any of their respective Affiliates or Associates or the Company.
Appears in 1 contract
Certain Other Matters. (a) Xx. Xxxx shall be entitled to resign So long as the Company has complied and is complying with its obligations set forth in this Amendment, from the Board at any time in his discretion. For purposes of this Agreement, the “Standstill Period” shall mean the period from and after the date of this Amendment until the later of (x) the first business day following the 2014 Annual Meeting and (y) the 10th business day following the date that no Icahn Nominee is a member of the Board (it being understood that if no Icahn Nominee is a member of the Board due to circumstances in which the Icahn Group would be entitled to designate a Replacement pursuant to Section 1(c)(iii), an Icahn Nominee shall be deemed to continue to be a member of the Board for all purposes of this Agreement until such time as the latest of Icahn Group irrevocably waives in writing any right to designate such a Replacement or designates such a Replacement) (A) the six month anniversary later of the Effective Dateforegoing periods, (B) sixty days after Xx. Xxxx is the “Board Representation Period”), except as expressly permitted by the terms of this Amendment, no longer serving as a director member of the Company, and (C) if Xx. Xxxx is a director at all times until the time nominations are due for the 2016 Annual Meeting, and is nominated and agrees to serve on the Company’s slate of director nominees for the 2016 Annual Meeting, the period from the printing of the proxy statement for that Meeting until the conclusion of that Meeting; provided that in no event shall the Standstill Period extend beyond the date of the 2016 Annual Meeting.
(b) During the Standstill Period, each Osmium Party shall notIcahn Group shall, directly or indirectly, and each Osmium Party member of the Icahn Group shall cause Xx. Xxxx and each other Osmium Icahn Affiliate and Associate not to, directly or indirectly (it being understood and agreed that the following restrictions shall not apply to Xx. Xxxx’x discussions solely among other members of the Board and/or management of 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, to the Voting Securities (as defined below), or from the holders of the Voting Securities, 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 or entity that is not a Party (a “Third Party”) 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 the BoardCompany 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 other 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 without limitation a “group” group as defined under Section 13(d) of the Exchange Act, with respect to the Voting Securities (it being understood that a Permitted Person (or Permitted Persons), as long as it is (or they are) such, engaging in Permitted Activities (each as defined in the Rights Agreement) shall not be deemed to be or create a partnership, limited partnership, syndicate or other group, including without limitation a group as defined under Section 13(d) of the Exchange Act, for the avoidance purposes of doubt, excluding any group composed solely of Osmium Parties and their Affiliates and Associatesthis clause (iii)), or otherwise support or participate in any effort by a Third Party third party with respect to the matters set forth in Section 2(b);
clause (i) above, (iv) present at any annual meeting 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) propose any nominee for election to the Board, other than through action at the Board by any Icahn Nominee acting in his or seek representation on the Board; or call or request the calling of a special meeting of stockholders or action by stockholders through written consent;
her capacity as such, (v) 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 stockholdersstockholders (an “Annual Meeting”)) or deposit any of the Voting Securities of held by the Company Icahn Group or the Icahn Affiliates in a voting trust or subject them to a voting agreement or other arrangement of similar effect with respect to any annual meeting Annual Meeting except as provided in Section 1(c)2(b) below, special meeting of stockholders or action by written consent (excluding customary brokerage accounts, margin accounts, prime brokerage accounts and the like);
(vi) make any request for the Company’s stock ledger, a list of its stockholders, or other books and records of the Company under Section 220 of the Delaware General Corporation Law or otherwise (provided that this clause (vi) shall not limit Xx. Xxxx’ rights to reasonably request information solely in his capacity as a director of the Company);
Law, (vii) in any manner, directly or indirectly, make, or cause to be made, by press release or in any way encourage any other person similar public statement to make the press or cause to be mademedia, any public statement or public announcement, including in any document or report filed with or furnished to the Securities and Exchange Commission or through the press, media, analysts or other persons, announcement that disparages, defames or slanders, or otherwise constitutes an ad hominem attack on, or otherwise disparages (as distinct from objective statements reflecting business criticism), the Company, its officers or the Company’s subsidiaries, Affiliates, successors, assigns, officers (including any former officer and its directors or any person who serves on or following the date of this Agreement has served as an officer), directors (including any former officer or director and any person who serves on of the Company in the past or following the date of this Agreement as a director), or employees.
(viii) 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). As used in this Agreement, other than an action to enforce the provisions of this Agreement instituted in accordance with and subject to Section 7;
(ix) 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 any of its subsidiaries or its or their securities or a material amount of the assets or businesses of the Company, any of the Company’s Affiliates, or any subsidiary, business, venture or division of the foregoing, or encourage, initiate or support any other Third Party in any such activity;
(x) purchase or cause to be purchased or otherwise acquire or agree to acquire Beneficial Ownership of any term “Voting Securities” shall mean the common stock, if in any such casepar value $0.10 per share, immediately after the taking of such action, the Osmium Parties and their Affiliates and Associates would, in the aggregate, collectively Beneficially Own, or have an economic interest in, an amount that would exceed 16.5% of the then outstanding shares of Common Stock of the Company (the “Share LimitCommon Stock”); provided, however, that if the closing sales price per share of the Company’s Common Stock on the New York Stock Exchange shall be less than $6.50 per share for more than five consecutive trading days, the Share Limit shall increase to 19.9% until the closing sales price per share of the Company’s Common Stock on the New York Stock Exchange shall again be above $6.50 on ) and any trading day, at which time it shall automatically be reduced to the then outstanding shares of Common Stock other securities of the Company Beneficially owned by entitled to vote in the Osmium Parties and their Affiliates and Associates election of directors, or securities convertible into, or exercisable or exchangeable for Common Stock or other securities, whether or not subject to the passage of time or other contingencies. No activity that is a “Permitted Activity” as defined in the Rights Agreement as of the first date on which the closing sales price per share of the Company’s Common Stock on the New York Stock Exchange this Amendment shall again be above $6.50;
(xi) enter into any discussions, negotiations, agreements, arrangements or understandings with any Third Party with respect to the matters set forth in constitute a violation of this Section 2(b); or
(xii2(a) request, directly or indirectly, any amendment or waiver 2(c) regardless of whether the foregoing Rights Agreement is then in a manner that would reasonably likely require public disclosure by any Osmium Party or any of their respective Affiliates or Associates or the Companyeffect.
Appears in 1 contract
Samples: Settlement Agreement (Icahn Carl C)
Certain Other Matters. (a) Xx. Xxxx shall So long as the Company has complied and is complying with its obligations set forth in this Agreement, from and after the date hereof until the later of (x) the conclusion of the 2013 Annual Meeting and (y) the date that an Icahn Nominee is no longer a member of the Board (it being understood that if such an Icahn Nominee is no longer a member of the Board due to circumstances in which the Icahn Group would be entitled to resign from appoint a Replacement pursuant to Section 2(a)(vi), an Icahn Nominee shall be deemed to continue to be a member of the Board at any time in his discretion. For for all purposes of this Agreement, the “Standstill Period” shall mean the period from the date of this Agreement until such time as the latest of Icahn Group irrevocably waives in writing any right to designate such a Replacement or appoints such a Replacement) (A) the six month anniversary later of the Effective Dateforegoing periods, (B) sixty days after Xx. Xxxx is the “Board Representation Period”), no longer serving as a director member of the Company, and (C) if Xx. Xxxx is a director at all times until the time nominations are due for the 2016 Annual Meeting, and is nominated and agrees to serve on the Company’s slate of director nominees for the 2016 Annual Meeting, the period from the printing of the proxy statement for that Meeting until the conclusion of that Meeting; provided that in no event shall the Standstill Period extend beyond the date of the 2016 Annual Meeting.
(b) During the Standstill Period, each Osmium Party shall notIcahn Group shall, directly or indirectly, and each Osmium Party member of the Icahn Group shall cause Xx. Xxxx and each other Osmium Icahn Affiliate and Associate not to, directly or indirectly (it being understood and agreed that the following restrictions shall not apply to Xx. Xxxx’x discussions solely among other members of the Board and/or management of 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, to the Voting Securities (as defined below), or from the holders of the Voting Securities, 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 or entity that is not a Party (a “Third Party”) 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 the BoardCompany 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 other 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 without limitation a “group” group as defined under Section 13(d) of the Exchange Act, with respect to the Voting Securities (it being understood that a Permitted Person (or Permitted Persons) as long as it is (or they are) such engaging in Permitted Activities (each as defined in the Rights Plan) shall not be deemed to be or create a “group” for the avoidance purposes of doubt, excluding any group composed solely of Osmium Parties and their Affiliates and Associatesthis clause (iii)), or otherwise support or participate in any effort by a Third Party third party with respect to the matters set forth in Section 2(b);
clause (i) above, (iv) present at any annual meeting 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) propose any nominee for election to the Board, other than through action at the Board by the Icahn Nominee acting in his or seek representation on the Board; or call or request the calling of a special meeting of stockholders or action by stockholders through written consent;
her capacity as such, (v) 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 stockholdersstockholders (an “Annual Meeting”)) or deposit any of the Voting Securities of held by the Company Icahn Group or the Icahn Affiliates in a voting trust or subject them to a voting agreement or other arrangement of similar effect with respect to any annual meeting Annual Meeting except as provided in Section 1(c)3(b) below, special meeting of stockholders or action by written consent (excluding customary brokerage accounts, margin accounts, prime brokerage accounts and the like);
(vi) make any request for the Company’s stock ledger, a list of its stockholders, or other books and records of the Company under Section 220 of the Delaware General Corporation Law or otherwise (provided that this clause (vi) shall not limit Xx. Xxxx’ rights to reasonably request information solely in his capacity as a director of the Company);
Law, (vii) in any manner, directly or indirectly, make, or cause to be made, by press release or in any way encourage any other person similar public statement to make the press or cause to be mademedia, any public statement or public announcement, including in any document or report filed with or furnished to the Securities and Exchange Commission or through the press, media, analysts or other persons, announcement that disparages, defames or slanders, or otherwise constitutes an ad hominem attack on, or otherwise disparages (as distinct from objective statements reflecting business criticism), the Company, its officers or the Company’s subsidiaries, Affiliates, successors, assigns, officers (including any former officer and its directors or any person who serves on or following the date of this Agreement has served as an officer), directors (including any former officer or director and any person who serves on of the Company in the past or following the date of this Agreement as a director), or employees.
(viii) 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). As used in this Agreement, other than an action to enforce the provisions of this Agreement instituted in accordance with and subject to Section 7;
(ix) 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 any of its subsidiaries or its or their securities or a material amount of the assets or businesses of the Company, any of the Company’s Affiliates, or any subsidiary, business, venture or division of the foregoing, or encourage, initiate or support any other Third Party in any such activity;
(x) purchase or cause to be purchased or otherwise acquire or agree to acquire Beneficial Ownership of any term “Voting Securities” shall mean the common stock, if in any such casepar value $0.10 per share, immediately after the taking of such action, the Osmium Parties and their Affiliates and Associates would, in the aggregate, collectively Beneficially Own, or have an economic interest in, an amount that would exceed 16.5% of the then outstanding shares of Common Stock of the Company (the “Share LimitCommon Stock”); provided, however, that if the closing sales price per share of the Company’s Common Stock on the New York Stock Exchange shall be less than $6.50 per share for more than five consecutive trading days, the Share Limit shall increase to 19.9% until the closing sales price per share of the Company’s Common Stock on the New York Stock Exchange shall again be above $6.50 on ) and any trading day, at which time it shall automatically be reduced to the then outstanding shares of Common Stock other securities of the Company Beneficially owned by entitled to vote in the Osmium Parties and their Affiliates and Associates as election of the first date on which the closing sales price per share of the Company’s directors, or securities convertible into, or exercisable or exchangeable for Common Stock on the New York Stock Exchange shall again be above $6.50;
(xi) enter into any discussionsor other securities, negotiations, agreements, arrangements whether or understandings with any Third Party with respect not subject to the matters set forth passage of time or other contingencies. For so long as the Rights Agreement (or a New Rights Plan) is in effect, no “Permitted Activity” under the Rights Agreement (or New Rights Plan) shall constitute a violation of this Section 2(b3(a) or 3(c); or
(xii) request, directly or indirectly, any amendment or waiver of the foregoing in a manner that would reasonably likely require public disclosure by any Osmium Party or any of their respective Affiliates or Associates or the Company.
Appears in 1 contract
Samples: Settlement Agreement (Icahn Carl C)
Certain Other Matters. (a) Xx. Xxxx shall be entitled to The parties acknowledge that an Icahn Designee may resign from the Board at any time in his discretionby giving prior written notice to the Board. For so long as any 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, the “Standstill Period” shall mean the period from the date of this Agreement until such time as the latest of Icahn Group irrevocably waives in writing any right to designate such a Replacement or appoints such a Replacement) (A) the six month anniversary “Board Representation Period”), no member of the Effective Date, (B) sixty days after Xx. Xxxx is no longer serving as a director of the Company, and (C) if Xx. Xxxx is a director at all times until the time nominations are due for the 2016 Annual Meeting, and is nominated and agrees to serve on the Company’s slate of director nominees for the 2016 Annual Meeting, the period from the printing of the proxy statement for that Meeting until the conclusion of that Meeting; provided that in no event shall the Standstill Period extend beyond the date of the 2016 Annual Meeting.
(b) During the Standstill Period, each Osmium Party shall notIcahn Group shall, directly or indirectly, and each Osmium Party member of the Icahn Group shall cause Xx. Xxxx and each other Osmium Icahn Affiliate and Associate not to, directly or indirectly (it being understood and agreed that the following restrictions shall not apply to Xx. Xxxx’x discussions solely among other members of the Board and/or management any Icahn Designee or Replacement in such person’s capacity as a director of 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 person or entity that is not a Party (a “Third Party”) 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 the BoardCompany 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 doubt, excluding any group composed solely of Osmium Parties and their Affiliates and Associates)Securities, or otherwise support or participate in any effort by a Third Party third party with respect to the matters set forth in Section 2(b)clause (i) above;
(iv) present at any annual meeting 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) propose any nominee for election to the Board or seek representation on the Board or the removal of any member of the Board; , other than through action at the Board by an Icahn Designee acting in his or call or request the calling of a special meeting of stockholders or action by stockholders through written consenther capacity as such;
(v) 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 stockholdersstockholders (an “Annual 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 Annual Meeting except as provided in Section 1(c)2(b) below, special meeting of stockholders or action by written consent (excluding customary brokerage accounts, margin accounts, prime brokerage accounts and the like);
(vi) make any request for the Company’s stock ledger, a list of its stockholders, or other books and records of the Company under Section 220 of the Delaware General Corporation Law or otherwise (provided that this clause (vi) shall not limit Xx. Xxxx’ rights to reasonably request information solely in his capacity as a director of the Company)Law;
(vii) in any manner, directly or indirectly, make, or cause to be made, by press release or similar public statement to the press or media, or in an SEC filing, any way encourage statement or announcement that disparages (as distinct from objective statements reflecting business criticism), the Company, its officers or its directors or any other person to make who has served as an officer or director of the Company in the past (and the Company shall not make, or cause to be made, by press release or similar public statement, including to the press or media or in an SEC filing, any public statement or public announcementannouncement that disparages (as distinct from objective statements reflecting business criticism), including in any document member of the Icahn Group, the officers or report filed with or furnished to directors of any member of the Securities and Exchange Commission or through the press, media, analysts or other persons, that disparages, defames or slandersIcahn Group, or otherwise constitutes an ad hominem attack on, the Company, or the Company’s subsidiaries, Affiliates, successors, assigns, officers (including any former officer and any person who serves on or following the date of this Agreement has served as an officerofficer or director of any member of the Icahn Group in the past), directors (including any former director and any person who serves on or following the date of this Agreement as a director), or employees.;
(viii) 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 an action to enforce the provisions of this Agreement instituted in accordance with and subject to Section 7;
(ix) without other than pursuant to a Qualifying Offer (as such term is defined in the prior approval Rights Agreement dated as of August 27, 2012, between the Company and Computershare Shareowner Services LLC) or any other transaction approved by 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 any of its subsidiaries or its or their securities or a material amount of the assets or businesses of the Company, any of the Company’s Affiliates, or any subsidiary, business, venture or division of the foregoing, or encourage, initiate or support any other Third Party in any such activity;
(x) purchase or cause to be purchased or otherwise acquire or agree to acquire Beneficial Ownership of any Voting Securities, if in any such case, immediately after the taking of such action, the Osmium Parties and their Affiliates and Associates would, Securities that would equal or exceed (in the aggregate, collectively Beneficially Own, or have an economic interest in, an amount that would exceed 16.5aggregate with all other members of the Icahn Group and all Icahn Affiliates) the greater of (x) 15% of the then total outstanding shares Voting Securities and (y) the percentage of Common Stock the then total outstanding Voting Securities acquired by any other Person under circumstances in which the Board has waived or carved out by exception or similar devices the applicability of either any Rights Plan (as hereafter defined) currently in effect or which the Company hereafter adopts or Section 203 of the Delaware General Corporation Law 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); provided that, notwithstanding any other provision herein to the contrary, if the Board Representation Period has expired prior to the 365th day following the date of this Agreement, this clause (ix) shall remain in effect through the 365th day following the date of this Agreement. 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 prevent or make more difficult a hostile takeover of the Company by increasing the cost to a potential acquirer in such a takeover either through the issuance of new rights, shares of common stock or preferred stock (or any other security or device that may be issued to stockholders of the “Share Limit”); provided, however, that if the closing sales price per share Company other than ratably to all stockholders of the Company’s Common Stock on the New York Stock Exchange shall be less than $6.50 per share for more than five consecutive trading days) that carry severe redemption provisions, the Share Limit shall increase to 19.9% until the closing sales price per share of the Company’s Common Stock on the New York Stock Exchange shall again be above $6.50 on favorable purchase provisions or otherwise, and any trading day, at which time it shall automatically be reduced to the then outstanding shares of Common Stock of the Company Beneficially owned by the Osmium Parties and their Affiliates and Associates as of the first date on which the closing sales price per share of the Company’s Common Stock on the New York Stock Exchange shall again be above $6.50related rights agreement;
(xi) enter into any discussions, negotiations, agreements, arrangements or understandings with any Third Party with respect to the matters set forth in this Section 2(b); or
(xii) request, directly or indirectly, any amendment or waiver of the foregoing in a manner that would reasonably likely require public disclosure by any Osmium Party or any of their respective Affiliates or Associates or the Company.
Appears in 1 contract
