Common use of No Solicitation of Alternative Proposals Clause in Contracts

No Solicitation of Alternative Proposals. subsection of ‘‘The Merger Agreement’’ section in this joint proxy and consent solicitation statement/prospectus for more details on circumstances that may constitute an Alternative Proposal, and the associated actions and potential consequences of such circumstances. Solus Alternative Asset Management LP (‘‘Solus’’) and South Dakota Investment Council (‘‘SDIC’’), which are currently significant stockholders of Xxxxxxx, collectively holding a majority in voting power of Xxxxxxx’x equity securities, have each entered into separate Voting Agreements with Xxxxxxx and Era, pursuant to which each stockholder has agreed to deliver and duly execute a written consent in favor of the Merger. Such consents are to be executed and delivered within two Business Days following the effectiveness of the registration statement of which this proxy and consent solicitation statement/prospectus forms a part. As of January 23, 2020, the date on which the Voting Agreements were signed, Solus held 3,220,501 shares of Xxxxxxx Common Stock and 1,720,297 shares of Xxxxxxx Preferred Stock and SDIC held 2,783,012 shares of Xxxxxxx Common Stock and 2,018,384 shares of Xxxxxxx Preferred Stock. Pursuant to the Certificate of Designations for the Xxxxxxx Preferred Stock (the ‘‘Xxxxxxx Certificate of Designations’’), with respect to matters submitted to a vote of the holders of Xxxxxxx Common Stock, holders of each share of Xxxxxxx Preferred Stock will be entitled to vote on an ‘‘as-converted’’ basis, which deems each share of Xxxxxxx Preferred Stock to have been converted to 1.33 shares of Xxxxxxx Common Stock. Therefore, for the purpose of approving the Merger, on an as-converted basis, Solus is deemed to hold 5,515,019 shares of Xxxxxxx Common Stock and SDIC is deemed to hold 5,475,116, shares of Xxxxxxx Common Stock, and together they are deemed to hold an aggregate amount of 10,990,135 shares, or 51.2%, of Xxxxxxx Common Stock (the ‘‘Subject Shares’’). The deemed conversion of the Xxxxxxx Preferred Stock for the purpose of voting is distinct from the Preferred Stock Conversion. Pursuant to the Voting Agreements, both Solus and SDIC have agreed not to Transfer (as defined in the Voting Agreements) the Subject Shares without the prior written consent of Xxxxxxx and Era until the earliest of (i) the Effective Time of the Merger, (ii) the date and time of a valid termination of the Merger Agreement and (iii) any amendment, modification, change or waiver of any provisions of the Merger Agreement made without the prior written consent of Solus or SDIC, as applicable, that meets certain criteria (the ‘‘Expiration Time’’). Additionally, during the time period between the date of the Voting Agreements and the Expiration Time, both Solus and SDIC have agreed not to, without the prior written consent of Xxxxxxx and Era, (a) grant any proxies or powers of attorney with respect to any or all of the Subject Shares or agree to vote (or sign written consents in respect of) the Subject Shares on any matter or divest itself of any voting rights in the Subject Shares, or (b) take any action that would have the effect of preventing or disabling Solus or SDIC, as applicable, from performing its obligations under the Voting Agreements. Notwithstanding the foregoing, each of Solus and SDIC may, at any time, Transfer the Subject Shares to (1) a respective affiliate, (2) any investment fund or other entity controlled or managed by Solus or SDIC, as applicable, and/or their respective subsidiaries or affiliates or (3) any other third parties; provided, that the applicable transferee shall have executed and delivered a voting agreement substantially identical to the Voting Agreements prior to such transfer. Both Xxxxx and SDIC have agreed that any attempted transfer of the Subject Shares not permitted under the Voting Agreements will be null and void. Under the Voting Agreements, Xxx has agreed to negotiate and finalize in good faith, and at closing execute and deliver, a registration rights agreement with each of Solus and SDIC within 10 business days after the Closing Date. The Voting Agreement with Solus is attached hereto as Annex C and the Voting Agreement with SDIC is attached hereto as Annex D. Our obligations to complete the Merger depend on a number of conditions being met at or prior to the Effective Time. These include: • Era stockholders will have voted to approve the issuance of shares of Era Common Stock in connection with the Merger and the Share Increase Proposal; • the Era Charter Amendment No. 1 has been duly filed with the Secretary of State of the State of Delaware; • the shares of Era Common Stock to be issued pursuant to the Merger have been approved for listing on NYSE, subject to official notice of issuance; • the registration statement (of which this joint proxy and consent solicitation statement/prospectus forms a part) has been declared effective by the SEC under the Securities Act and no stop order suspending the effectiveness of the registration statement has been issued by the SEC and no proceedings for that purpose will have been threatened or initiated by the SEC that has not been withdrawn; • no order by any governmental entity of competent jurisdiction that makes illegal or prohibits the consummation of the Merger or the issuance of shares of Era Common Stock in connection with the Merger has been entered and continues to be in effect, and no law has been enacted, entered, promulgated, enforced or deemed applicable by any governmental entity of competent jurisdiction that prohibits or makes illegal the consummation of the Merger or the issuance of shares of Era Common Stock in connection with the Merger, and no action by a governmental entity seeking such an order or law is pending; and • the waiting period applicable to the Merger under the HSR Act or any other antitrust laws will have expired or been terminated and there is not any voluntary agreement with any antitrust authority pursuant to which both Era and Xxxxxxx have agreed not to consummate the Merger or related transactions for any period of time (the ‘‘HSR Condition’’). Each of Xxxxxxx and Era must satisfy additional obligations specific to them, which are further detailed in the ‘‘Conditions to Completion of the Merger’’ subsection of ‘‘The Merger Agreement’’ section in this joint proxy and consent solicitation statement/prospectus. Where the law permits, either of Era or Xxxxxxx may choose to waive a condition to its obligation to complete the Merger, even when that condition has not been satisfied. Era and Xxxxxxx cannot be certain when, or if, the conditions to the Merger will be satisfied or waived, or that the Merger will be completed. Consummation of the Merger is conditioned upon the receipt of antitrust approval. Under the provisions of the HSR Act, the Merger may not be consummated until filings are made with the Antitrust Division of the DOJ and the FTC and the expiration of, or early termination of, a 30-calendar day waiting period following the filing. Era and Xxxxxxx submitted their respective Notification and Report forms pursuant to the HSR Act on February 6, 2020. On March 9, 2020, Era withdrew its Notification and Report form, and on March 11, 2020 Era refiled an updated Notification and Report form, thereby commencing a new 30 day waiting period, which expired on April 10, 2020 without extension or any further action by the US antitrust agencies. We can mutually agree via written consent at any time to terminate the Merger Agreement without completing the Merger, even if Era has received approval of the Stock Issuance Proposal, the Share Increase Proposal by its stockholders and Xxxxxxx has received approval of the Xxxxxxx Merger Proposal. Also, either of Era or Xxxxxxx can decide, without the consent of the other, to terminate and abandon the Merger Agreement in certain circumstances, including if: • the Merger has not been consummated on or before October 23, 2020 (the ‘‘Initial End Date’’ and, as such date as may be extended as described below, the ‘‘End Date’’); provided, however, that such date may be extended by Era or Xxxxxxx to January 23, 2021, if on the Initial End Date, either of (i) the conditions regarding governmental orders (as a result only of antitrust laws) or (ii) the condition regarding the expiration of applicable waiting periods, has not been satisfied but all other conditions have been or are capable of being satisfied, provided further, that the party seeking to terminate will not have breached its obligations under the Merger Agreement in any manner that shall have been a substantially contributing factor to the failure to consummate the Merger on or before such date; • any court of competent jurisdiction issues or enters any order, judgment, writ, decree or injunction permanently enjoining or otherwise prohibiting the consummation of the Merger, and such injunction has become final and non-appealable, provided that the party seeking to terminate the Merger Agreement shall have used the efforts required under the Merger Agreement to prevent, remove and oppose such injunction; • either of the Era stockholders meeting or Xxxxxxx consent solicitation concludes without the requisite approvals by the respective stockholders; • either the Era Board (in the case of a termination by Xxxxxxx) or the Xxxxxxx Board (in the case of a termination by Era) or any committee thereof changes its recommendation to approve the adoption of the Merger Agreement; • either party (in the case of a termination by the other party) breaches or fails to perform any of their representations, warranties, covenants or other agreements required under the Merger Agreement, which breach or failure to perform (a) if it occurred or was continuing to occur on the Closing Date, would result in a failure of a condition regarding the accuracy of the other party’s representations and warranties or the other party’s compliance with its covenants and agreements, and (b) by its nature, cannot be cured prior to the End Date, or if such breach or failure is capable of being cured by the End Date, the other party has not cured such breach or failure within 45 days after receiving written notice from the other party describing such breach or failure in reasonable detail; provided that the other party seeking termination is not then in material breach of any representation, warranty, covenant or other agreement contained in the Merger Agreement that would result in a failure of a condition regarding the accuracy of the other party’s compliance with its covenants and agreements under the Merger Agreement; and • either party (in the case of a termination by the other party) has knowingly and intentionally engaged in a material breach of its respective ‘‘No Solicitation’’ covenant under the Merger Agreement. Whether or not the Merger is completed, Era and Xxxxxxx will each pay their own fees and expenses, except that the Merger Agreement provides that Xxxxxxx must pay Era a termination fee of $9,000,000 or reimburse expenses up to a limit of $4,000,000 in certain situations. The Merger Agreement also provides that Era must pay Xxxxxxx a termination fee of $9,000,000 or reimburse expenses up to a limit of $4,000,000 in certain situations. See the ‘‘Termination Fee; Expense Fee’’ subsection of ‘‘The Merger Agreement’’ section in this joint proxy and consent solicitation statement/prospectus for more details on such circumstances where each such termination fee may apply. At any time before completion of the Merger, either Era or Xxxxxxx may, to the extent legally allowed, waive in writing compliance by the other, any provision contained in the Merger Agreement. However, once Xxxxxxx’x stockholders have approved the Xxxxxxx Merger Proposal or Era’s stockholders have approved the Merger-Related Proposals, no waiver of any condition may be made that would require further approval by such party’s respective stockholders unless that approval is obtained. Era and Xxxxxxx are each a Delaware corporation subject to the provisions of the DGCL. If the Merger is consummated, Xxxxxxx stockholders, whose rights are currently governed by Xxxxxxx’x existing charter, bylaws and stockholder agreement and the DGCL, will, if they receive Era Common Stock as consideration to the Merger, become stockholders of Era and their rights will be governed by Era’s charter and bylaws that would become effective upon consummation of the Merger. Era is a Delaware corporation headquartered in Houston, Texas. It is one of the largest helicopter operators in the world and the longest serving helicopter transport operator in the U.S., which is its primary area of operations. Its helicopters are primarily used to transport personnel to, from and between offshore oil and gas production platforms, drilling rigs and other installations. In addition to serving the oil and gas industry, it provides emergency response services and utility services, among other activities. It also leases helicopters and provides related services to third-party helicopter operators. It currently has customers in the U.S., Brazil, Colombia, India, Mexico, Spain and Suriname. Era Common Stock trades on the NYSE under the the ticker symbol ‘‘ERA’’ and after the Merger will be listed on the NYSE under the symbol ‘‘VTOL’’. Xxxxxxx is a Delaware corporation headquartered in Houston, Texas. It is the world’s leading industrial aviation services provider offering helicopter transportation, search and rescue (‘‘SAR’’) and aircraft support services to government and commercial organizations worldwide. Xxxxxxx’x strategically located global fleet supports operations in the North Sea, Nigeria and the U.S. Gulf of Mexico; as well as in most of the other major offshore oil and gas producing regions of the world, including Australia, Brazil, Canada, Guyana and Trinidad. Xxxxxxx provides SAR services to the commercial sector worldwide and to the public sector for all of the U.K. on behalf of the Maritime and Coastguard Agency. Xxxxxxx also provides regional fixed wing scheduled and charter services in Australia and Nigeria. Xxxxxxx’x operations are conducted through two primary geographical hubs in key areas of business that include four regions: Europe Caspian, Africa, Americas and Asia Pacific. Ruby Redux Merger Sub, Inc. is a Delaware corporation and wholly owned subsidiary of Era. See ‘‘Information About the Companies’’ in this joint proxy and consent solicitation statement/prospectus. You should also carefully consider the risks that are described in the section entitled ‘‘Risk Factors’’ beginning on page 33 of this joint proxy and consent solicitation statement/prospectus.