Qualifying Offer. (i) If the Company receives a Qualifying Offer and the Board of Directors has not redeemed the outstanding Rights or exempted such Qualifying Offer from the terms of this Agreement or called a special meeting of stockholders for the purpose of voting on whether or not to exempt such Qualifying Offer from the terms of this Agreement, in each case, by the Close of Business on the date that is ninety (90) days following the commencement of such Qualifying Offer (within the meaning of Rule 14d-2(a) under the Exchange Act) (the “Board Evaluation Period”), then the holders of record (or their duly authorized proxy) of 25% or more of the shares of Common Stock then outstanding (excluding shares of Common Stock beneficially owned by the Person making the Qualifying Offer or by such Person’s Affiliates or Associates) (the “Requisite Percentage”) may submit to the Board of Directors, not earlier than ninety (90) days and not later than one hundred and twenty (120) days following the commencement of such Qualifying Offer (within the meaning of Rule 14d-2(a) under the Exchange Act), a written demand complying with the terms of this Section 23(e) (the “Special Meeting Demand”) directing the Board of Directors to submit to a vote of stockholders at a special meeting of the stockholders of the Company (a “Special Meeting”) a resolution exempting such Qualifying Offer from the provisions of this Agreement (the “Qualifying Offer Resolution”). (ii) Any Special Meeting Demand must (A) be delivered to the secretary of the Company at the principal executive offices of the Company, (B) be signed by the demanding stockholders (the “Demanding Stockholders”) or a duly authorized agent of the Demanding Stockholders, (C) provide, as to the stockholders of record executing the request, (x) the names and addresses of such stockholders, as they appear on the Company’s books and records, (y) the number of shares of Common Stock which are owned of record by each of such stockholders, and (z) in the case of the shares of Common Stock that are beneficially owned by another Person, an executed certification by the holder of record that such stockholder has executed such Special Meeting Demand only after obtaining instructions to do so from such Beneficial Owner and attaching evidence thereof, and (D) otherwise fulfill the requirements of clauses (c)(i)-(v) in the last paragraph of Section 2 of Article II of the Amended and Restated By-laws of the Company (such provisions to apply mutatis mutandis to the “Demanding Stockholders” as if they were the “stockholder” referred to therein). (iii) After receipt of a Special Meeting Demand in proper form and in accordance with this Section 23(e) from Demanding Stockholders holding the Requisite Percentage, the Board of Directors shall take such actions necessary or desirable to cause the Qualifying Offer Resolution to be so submitted to a vote of stockholders at a Special Meeting to be convened within one hundred twenty (120) days following the Board of Directors’ receipt of the Special Meeting Demand (the “Special Meeting Period”) by including a proposal relating to adoption of the Qualifying Offer Resolution in the proxy materials of the Company for the Special Meeting; provided, however, that if the Company at any time during the Special Meeting Period and prior to a vote on the Qualifying Offer Resolution enters into a Definitive Acquisition Agreement, the Special Meeting Period may be extended (and any Special Meeting called in connection therewith may be cancelled) if the Qualifying Offer Resolution is separately submitted to a vote at the same meeting as the Definitive Acquisition Agreement. (iv) Subject to the requirements of applicable law, the Board of Directors may take a position in favor of or opposed to the adoption of the Qualifying Offer Resolution, or no position with respect to the Qualifying Offer Resolution, as it determines to be appropriate in the exercise of its fiduciary duties. (v) If no Person has become an Acquiring Person prior to the Exemption Date and the Qualifying Offer continues to be a Qualifying Offer and either (A) the Special Meeting has not been convened on or prior to the last day of the Special Meeting Period (the “Outside Meeting Date”) or (B) if, at the Special Meeting at which a quorum is present, a majority of the shares of Common Stock outstanding as of the record date for the Special Meeting selected by the Board of Directors (excluding shares of Common Stock beneficially owned by the Person making the Qualifying Offer or by such Person’s Affiliates or Associates) shall vote in favor of the Qualifying Offer Resolution, then the Qualifying Offer shall be exempt from the application of this Agreement in all respects to such Qualifying Offer as long as it remains a Qualifying Offer, such exemption to be effective on the Close of Business on (1) the Outside Meeting Date or (2) the date on which the results of the vote on the Qualifying Offer Resolution at the Special Meeting are certified as official by the appointed inspectors of election for the Special Meeting, as the case may be (such date, the “Exemption Date”). Notwithstanding anything herein to the contrary, no action or vote by stockholders not in compliance with the provisions of this Section 23(e) shall serve to exempt any offer from the terms of this Agreement. (vi) Immediately upon the Close of Business on the Exemption Date, and without any further action and without any notice, the right to exercise the Rights with respect to the Qualifying Offer will terminate and, notwithstanding anything in this Agreement to the contrary, the consummation of the Qualifying Offer shall not cause the offeror (or its Affiliates and/or Associates) to become an Acquiring Person; and the Rights shall immediately expire and have no further force and effect upon such consummation.
Appears in 1 contract
Qualifying Offer. (i) If In the Company event the Corporation receives a Qualifying Offer (that has not been terminated prior thereto and which continues to be a Qualifying Offer), stockholders representing at least 10% of the Common Shares then outstanding may request that the Board of Directors has not redeemed of the outstanding Rights or exempted such Qualifying Offer from the terms of this Agreement or called Corporation call a special meeting of stockholders for the purpose of voting on whether or not to vote to exempt such the Qualifying Offer from the terms of this Agreement, in each case, by the Close of Business on the date that is ninety (90) days following the commencement of such Qualifying Offer (within the meaning of Rule 14d-2(a) under the Exchange Act) (the “Board Evaluation Period”), then the holders of record (or their duly authorized proxy) of 25% or more operation of the shares of Common Stock then outstanding (excluding shares of Common Stock beneficially owned by the Person making the Qualifying Offer or by such Person’s Affiliates or Associates) (the “Requisite Percentage”) may submit to the Board of Directors, Agreement not earlier than ninety (90) days and not ), nor later than one hundred and twenty (120) ), business days following the commencement of such Qualifying Offer (within offer. The Board of Directors of the meaning of Rule 14d-2(a) under the Exchange Act), Corporation must then call and hold such a written demand complying with meeting to vote on exempting such offer from the terms of this Section 23(ethe Agreement within the ninetieth (90th) business day following receipt of the stockholder demand for such meeting; provided that such period may be extended if, prior to such vote, the Corporation enters into an agreement (that is conditioned on the “Special Meeting Demand”approval by the holders of not less than a majority of the outstanding Common Shares) directing the Board of Directors to submit with respect to a vote merger, recapitalization, share exchange, or a similar transaction involving the Corporation or the direct or indirect acquisition of stockholders at a special meeting more than fifty percent (50%) of the stockholders of the Company Corporation’s consolidated total assets (a “Special Meeting”) a resolution exempting such Qualifying Offer from the provisions of this Agreement (the “Qualifying Offer Resolution”).
(ii) Any Special Meeting Demand must (A) be delivered to the secretary of the Company at the principal executive offices of the Company, (B) be signed by the demanding stockholders (the “Demanding Stockholders”) or a duly authorized agent of the Demanding Stockholders, (C) provide, as to the stockholders of record executing the request, (x) the names and addresses of such stockholders, as they appear on the Company’s books and records, (y) the number of shares of Common Stock which are owned of record by each of such stockholders, and (z) in the case of the shares of Common Stock that are beneficially owned by another Person, an executed certification by the holder of record that such stockholder has executed such Special Meeting Demand only after obtaining instructions to do so from such Beneficial Owner and attaching evidence thereof, and (D) otherwise fulfill the requirements of clauses (c)(i)-(v) in the last paragraph of Section 2 of Article II of the Amended and Restated By-laws of the Company (such provisions to apply mutatis mutandis to the “Demanding Stockholders” as if they were the “stockholder” referred to therein).
(iii) After receipt of a Special Meeting Demand in proper form and in accordance with this Section 23(e) from Demanding Stockholders holding the Requisite Percentage, the Board of Directors shall take such actions necessary or desirable to cause the Qualifying Offer Resolution to be so submitted to a vote of stockholders at a Special Meeting to be convened within one hundred twenty (120) days following the Board of Directors’ receipt of the Special Meeting Demand (the “Special Meeting Period”) by including a proposal relating to adoption of the Qualifying Offer Resolution in the proxy materials of the Company for the Special Meeting; provided, however, that if the Company at any time during the Special Meeting Period and prior to a vote on the Qualifying Offer Resolution enters into a Definitive Acquisition Agreement”), until the Special Meeting Period may time of the meeting at which the stockholders will be extended (and any Special Meeting called in connection therewith may be cancelled) if the Qualifying Offer Resolution is separately submitted asked to a vote at the same meeting as on the Definitive Acquisition Agreement.
(iv) Subject to the requirements of applicable law, the Board of Directors may take a position in favor of or opposed to the adoption of the Qualifying Offer Resolution, or no position with respect to the Qualifying Offer Resolution, as it determines to be appropriate in the exercise of its fiduciary duties.
(v) . If no Person person has become an Acquiring Person prior to Person, the Exemption Date and the Qualifying Offer offer continues to be a Qualifying Offer and either (A) the Special Meeting has not been convened on or prior to the last day stockholders representing at least a majority of the Special Meeting Period (the “Outside Meeting Date”) or (B) if, Common Shares represented at the Special Meeting meeting at which a quorum is present, a majority of the shares of Common Stock outstanding as of the record date for the Special Meeting selected by the Board of Directors (excluding shares of Common Stock beneficially owned by the Person making the Qualifying Offer or by such Person’s Affiliates or Associates) shall present vote in favor of redeeming the Qualifying Offer Resolutionrights, then the such Qualifying Offer shall be deemed exempt from the application of this Agreement in all respects to such Qualifying Offer as long as it remains a Qualifying Offer, such exemption to be effective on the Close of Business on (1) the Outside Meeting Date or (2) the date on which the results of that the vote on the Qualifying Offer Resolution at the Special Meeting results are certified as official by the appointed inspectors of election for the Special Meeting, as the case may be (such date, the “Exemption Date”)certified. Notwithstanding anything herein to the contrary, If no action or vote by stockholders not in compliance with the provisions of this Section 23(e) shall serve to exempt any offer from the terms of this Agreement.
(vi) Immediately upon the Close of Business on the Exemption Date, and without any further action and without any notice, the right to exercise the Rights with respect to the Qualifying Offer will terminate and, notwithstanding anything in this Agreement to the contrary, the consummation of the Qualifying Offer shall not cause the offeror (or its Affiliates and/or Associates) to person has become an Acquiring Person; Person and no special meeting is held by the Rights shall immediately expire and have no further force and effect upon such consummationdate required, the rights will be redeemed at the close of business on the tenth (10th) business day following that date.
Appears in 1 contract
Qualifying Offer. (i) If i. In the event that the Company receives a Qualifying Offer and the Board of Directors has not redeemed the outstanding Rights or exempted such Qualifying Offer from the terms of this Agreement or called a special meeting of stockholders for the purpose of voting on whether or not to exempt such Qualifying Offer from the terms of this Agreement, in each case, by the Close of Business on the date that is ninety (90) days following the commencement of such Qualifying Offer (within the meaning of Rule 14d-2(a) under the Exchange Act) Act (the “Board Evaluation Period”), then the holders of record (or their duly authorized proxy) of 2510% or more of the shares of Common Stock of the Company then outstanding (excluding shares of Common Stock beneficially owned that are Beneficially Owned by the Person making the Qualifying Offer or by such Person’s Affiliates or AssociatesOffer) (the “Requisite Percentage”) may submit to the Board of DirectorsBoard, not earlier than ninety (90) days and not nor later than one hundred and twenty (120) days following the commencement of such Qualifying Offer (within the meaning of Rule 14d-2(a) under the Exchange Act)Offer, a written demand complying with the terms of this Section 23(e23(c) (the “Special Meeting Demand”) directing the Board of Directors to submit to a vote of stockholders at a special meeting of the stockholders of the Company (a “Special Meeting”) a resolution exempting such Qualifying Offer from the provisions of this Agreement (the “Qualifying Offer Resolution”).
(ii) . Any Special Meeting Demand must be (A) be delivered to the secretary of the Company Secretary at the principal executive offices of the Company, ; and (B) be signed by the demanding stockholders (the “Demanding Stockholders”) or a duly authorized agent of the Demanding Stockholders, (C) provide, as to the stockholders of record executing the request, (x) the names and addresses of such stockholders, as they appear on the Company’s books and records, (y) the number of shares of Common Stock which are owned of record by each of such stockholders, and (z) in the case of the shares of Common Stock that are beneficially owned by another Person, an executed certification by the holder of record that such stockholder has executed such Special Meeting Demand only after obtaining instructions to do so from such Beneficial Owner and attaching evidence thereof, and (D) otherwise fulfill the requirements of clauses (c)(i)-(v) in the last paragraph of Section 2 of Article II of the Amended and Restated By-laws of the Company (such provisions to apply mutatis mutandis to the “Demanding Stockholders” as if they were the “stockholder” referred to therein).
(iii) ii. After receipt of a Special Meeting Demand in proper form and in accordance with this Section 23(e23(c) from Demanding Stockholders holding the Requisite Percentage, the Board of Directors shall take such actions necessary or desirable to cause the Qualifying Offer Resolution to be so submitted to a vote of stockholders at a Special Meeting to be convened within one hundred twenty ninety (12090) days following the Board of Directors’ receipt last day of the Special Meeting Demand Board Evaluation Period (the “Special Meeting Period”) by including a proposal relating to adoption of the Qualifying Offer Resolution in the proxy materials of the Company for the Special Meeting; provided, however, that the Board may cause the Qualifying Offer Resolution to be submitted to a vote of stockholders at an annual meeting of the stockholders of the Company if such annual meeting is to be convened during the Special Meeting Period; provided, further, that if the Company at any time during the Special Meeting Period and prior to a vote on the Qualifying Offer Resolution enters into a Definitive Acquisition Agreement, the Special Meeting Period may be extended (and any Special Meeting called in connection therewith may be cancelled) if the Qualifying Offer Resolution is separately submitted to a vote at the same meeting as the Definitive Acquisition Agreement.
(iv) . Subject to the requirements of applicable law, the Board of Directors may take a position in favor of or opposed to the adoption of the Qualifying Offer Resolution, or no position with respect to the Qualifying Offer Resolution, as it determines to be appropriate in the exercise of its fiduciary duties.
(v) If iii. In the event that no Person has become an Acquiring Person prior to the Exemption Date and the Qualifying Offer continues to be a Qualifying Offer and either (A) the Special Meeting has not been convened on or prior to the last day of the Special Meeting Period (the “Outside Meeting Date”) ); or (B) if, at the Special Meeting at which a quorum is presentestablished, a majority of the shares of Common Stock outstanding as of the record date for the Special Meeting selected by the Board of Directors (excluding shares of Common Stock beneficially owned Beneficially Owned by the Person making the Qualifying Qualified Offer or by and such Person’s Affiliates or AssociatesRelated Persons) shall vote in favor of the Qualifying Offer Resolution, then the Qualifying Offer shall be exempt from the application of this Agreement in all respects to such Qualifying Offer as long as it remains a Qualifying Offer, such exemption to be effective on the Close of Business on (1) the Outside Meeting Date or (2) the date on which the results of the vote on the Qualifying Offer Resolution at the Special Meeting are certified as official by the appointed inspectors of election for the Special Meeting, as the case may be (such date, the “Exemption Date”). Notwithstanding anything herein to the contrary, no action or vote by stockholders not in compliance with the provisions of this Section 23(e23(c) shall serve to exempt any offer from the terms of this Agreement.
(vi) . Immediately upon the Close of Business on the Exemption Date, and without any further action and without any notice, the right to exercise the Rights with respect to the Qualifying Offer will terminate and, notwithstanding anything in this Agreement to the contrary, the consummation of the Qualifying Offer shall not cause the offeror (or its Affiliates and/or AssociatesRelated Persons) to become an Acquiring Person; and the Rights shall immediately expire and have no further force and effect upon such consummation.
Appears in 1 contract
Samples: Rights Agreement (Synalloy Corp)
Qualifying Offer. (i) If the Company receives a “Qualifying Offer” (as defined in the Rights Agreement) that has not been terminated and continues to be a Qualifying Offer for the period hereinafter described and the Board of Directors has not redeemed the outstanding Rights or Rights, exempted such Qualifying Offer from the terms of this the Rights Agreement or called a special meeting of for stockholders for the purpose of voting to vote on whether or not to exempt such the Qualifying Offer from the terms of this Agreement, in each case, by the Close of Business on the date that is Rights Agreement within ninety (90) business days following the commencement of such Qualifying Offer, and if, within ninety (90) to one hundred twenty (120) business days following commencement of such Qualifying Offer, the Company receives a notice in compliance with the Rights Agreement from holders of record (or their duly authorized proxy) of at least ten percent (10.0%) of the Common Shares (excluding shares beneficially owned by the offeror and its Affiliates and Associates) requesting a special meeting of the Company’s stockholders to vote on a resolution to exempt the Qualifying Offer (the “Qualifying Offer Resolution”) from the terms of the Rights Agreement, then the Board must call and hold such a special meeting (the “Special Meeting”) by the ninetieth (90th) business day following receipt of the stockholder notice (the “Outside Meeting Date”); provided, that such stockholder vote may be held at an annual meeting of the stockholders if such annual meeting is to be convened on or prior to the Outside Meeting Date. If prior to holding a vote on the Qualifying Offer Resolution at the Special Meeting, the Company enters into an agreement conditioned on the approval by holders of a majority of the outstanding Common Shares with respect to a share exchange, one-step merger, tender offer and back-end merger, consolidation, recapitalization, reorganization, business combination or a similar transaction involving the Company or the direct or indirect acquisition of fifty percent (50%) or more of the Company’s consolidated total assets or earning power, the Outside Meeting Date may be extended by the Board of Directors so that stockholders vote on whether to exempt the qualifying offer at the same time as they vote on such agreement. If the Board does not hold the Special Meeting by the Outside Meeting Date to vote on the exemption of the Qualifying Offer, the Qualifying Offer will be deemed exempt from the Rights Agreement ten (10) business days after the Outside Meeting Date. If the Board does hold a Special Meeting and stockholders vote at such meeting in favor of exempting the Qualifying Offer from the terms of the Rights Agreement, the Qualifying Offer will be deemed exempt from the Rights Agreement ten (10) business days after the votes are certified as official by the inspector of elections. A “Qualifying Offer,” in summary terms, is an offer determined by a majority of the independent members of the Board (as such independence is determined by the Board in accordance with the listing rules of the Nasdaq) to have the following characteristics, among others, which are generally intended to preclude offers that are coercive, abusive or highly contingent: • is a fully financed, all cash tender offer for all of the outstanding Common Shares, or an exchange offer offering shares of common stock of the offeror, or a combination thereof, in each such case for any and all of the outstanding Common Shares (whether such shares are outstanding at the commencement of the offer or become outstanding thereafter upon the exercise or conversion of options or other securities that are outstanding at the commencement of the offer) at the same per share consideration; • an offer that has commenced within the meaning of Rule 14d–2(a) under the Exchange Act; • an offer that is subject to only the Minimum Tender Condition (as defined below) and other customary terms and conditions, which conditions shall not include any financing, funding or similar conditions or any requirements with respect to the offeror or its agents or any Person being permitted any due diligence with respect to the books, records, management, accountants or other outside advisors of the Company; stock of the offeror; • an offer (other than an offer consisting solely of cash consideration) pursuant to which the Company has received the written representation and certification of the offeror and the written representations and certifications of the offeror’s Chief Executive Officer and Chief Financial Officer, acting in such capacities, that (A) all facts about the offeror that would be material to making an investor’s decision to accept the offer have been fully and accurately disclosed as of the date of the commencement of the offer within the meaning of Rule 14d-2(a) under the Exchange Act) (the “Board Evaluation Period”), then the holders of record (or their duly authorized proxy) of 25% or more of the shares of Common Stock then outstanding (excluding shares of Common Stock beneficially owned by the Person making the Qualifying Offer or by such Person’s Affiliates or Associates) (the “Requisite Percentage”) may submit to the Board of Directors, not earlier than ninety (90) days and not later than one hundred and twenty (120) days following the commencement of such Qualifying Offer (within the meaning of Rule 14d-2(a) under the Exchange Act), a written demand complying with the terms of this Section 23(e) (the “Special Meeting Demand”) directing the Board of Directors to submit to a vote of stockholders at a special meeting of the stockholders of the Company (a “Special Meeting”) a resolution exempting such Qualifying Offer from the provisions of this Agreement (the “Qualifying Offer Resolution”).
(ii) Any Special Meeting Demand must (A) be delivered to the secretary of the Company at the principal executive offices of the Company, (B) all such new facts will be signed by fully and accurately disclosed on a prompt basis during the demanding stockholders (entire period during which the “Demanding Stockholders”) or a duly authorized agent of the Demanding Stockholdersoffer remains open, and (C) provide, as to all required Exchange Act reports will be filed by the stockholders of record executing the request, (x) the names offeror in a timely manner during such period; and addresses of such stockholders, as they appear on the Company’s books and records, (y) the number of shares of Common Stock which are owned of record by each of such stockholders, and (z) • an offer that is otherwise in the case of the shares of Common Stock that are beneficially owned by another Person, an executed certification by the holder of record that such stockholder has executed such Special Meeting Demand only after obtaining instructions to do so from such Beneficial Owner and attaching evidence thereof, and (D) otherwise fulfill the requirements of clauses (c)(i)-(v) in the last paragraph of Section 2 of Article II of the Amended and Restated By-laws best interests of the Company (such provisions and its stockholders. As discussed in the Rights Agreement, additional requirements apply to apply mutatis mutandis to offers not consisting solely of cash consideration. Notwithstanding the “Demanding Stockholders” as if they were the “stockholder” referred to therein).
(iii) After receipt inclusion of a Special Meeting Demand Qualifying Offer provision in proper form and in accordance with this Section 23(e) from Demanding Stockholders holding the Requisite PercentageRights Agreement, the Board of Directors shall take such actions necessary or desirable reserves the right to cause the reject any Qualifying Offer Resolution to be so submitted to a vote of stockholders at a Special Meeting to be convened within one hundred twenty (120) days following the Board of Directors’ receipt of the Special Meeting Demand (the “Special Meeting Period”) by including a proposal relating to adoption of the Qualifying Offer Resolution in the proxy materials of the Company for the Special Meeting; provided, however, that if the Company at or any time during the Special Meeting Period and prior to a vote on the Qualifying Offer Resolution enters into a Definitive Acquisition Agreement, the Special Meeting Period may be extended (and any Special Meeting called in connection therewith may be cancelled) if the Qualifying Offer Resolution is separately submitted to a vote at the same meeting as the Definitive Acquisition Agreement.
(iv) Subject to the requirements of applicable law, the Board of Directors may take a position in favor of other tender or opposed to the adoption of the Qualifying Offer Resolutionexchange offer or other acquisition proposal, or no position take any other action with respect to the any Qualifying Offer Resolution, as it determines to be or any tender or exchange offer or other acquisition proposal that the Board believes is necessary or appropriate in the exercise of its fiduciary duties.
(v) If no Person has become an Acquiring Person prior to the Exemption Date and the Qualifying Offer continues to be a Qualifying Offer and either (A) the Special Meeting has not been convened on or prior to the last day of the Special Meeting Period (the “Outside Meeting Date”) or (B) if, at the Special Meeting at which a quorum is present, a majority of the shares of Common Stock outstanding as of the record date for the Special Meeting selected by the Board of Directors (excluding shares of Common Stock beneficially owned by the Person making the Qualifying Offer or by such Person’s Affiliates or Associates) shall vote in favor of the Qualifying Offer Resolution, then the Qualifying Offer shall be exempt from the application of this Agreement in all respects to such Qualifying Offer as long as it remains a Qualifying Offer, such exemption to be effective on the Close of Business on (1) the Outside Meeting Date or (2) the date on which the results of the vote on the Qualifying Offer Resolution at the Special Meeting are certified as official by the appointed inspectors of election for the Special Meeting, as the case may be (such date, the “Exemption Date”). Notwithstanding anything herein to the contrary, no action or vote by stockholders not in compliance with the provisions of this Section 23(e) shall serve to exempt any offer from the terms of this Agreement.
(vi) Immediately upon the Close of Business on the Exemption Date, and without any further action and without any notice, the right to exercise the Rights with respect to the Qualifying Offer will terminate and, notwithstanding anything in this Agreement to the contrary, the consummation of the Qualifying Offer shall not cause the offeror (or its Affiliates and/or Associates) to become an Acquiring Person; and the Rights shall immediately expire and have no further force and effect upon such consummation.
Appears in 1 contract
Samples: Rights Agreement (Turtle Beach Corp)
Qualifying Offer. (i) If In the event (A) the Company receives a Qualifying Offer, (B) a sufficient number of shares of Common Stock have been tendered into the Qualifying Offer and not withdrawn to meet the Minimum Tender Condition and (C) the Board of Directors has not redeemed the outstanding Rights or exempted such Qualifying Offer from the terms of this Agreement or called a special meeting of stockholders for the purpose of voting on whether or not to exempt such Qualifying Offer from the terms of this Agreement, in each case, by the Close of Business on the date that is ninety (90) 90 days following the commencement of such Qualifying Offer (within the meaning of Rule 14d-2(a) under of the Exchange Act) Act Regulations (the “Board Evaluation Period”), then the holders of record (or their duly authorized proxy) of at least 25% or more of the shares of Common Stock then outstanding (excluding shares of Common Stock beneficially owned that are Beneficially Owned by the Person making the Qualifying Offer or by and such Person’s Affiliates or AssociatesRelated Persons) (the “Requisite Percentage”) may submit to the Board of DirectorsBoard, not earlier than ninety (90) days and not no later than one hundred and twenty (120) 60 days following the commencement end of such Qualifying Offer (within the meaning of Rule 14d-2(a) under the Exchange Act)Board Evaluation Period, a written demand complying with the terms of this Section 23(e) 23.3 (the “Special Meeting Demand”) directing the Board of Directors to submit to a vote of stockholders at a special meeting of the stockholders of the Company (a “Special Meeting”) a resolution exempting such Qualifying Offer from the provisions of this Agreement (the “Qualifying Offer Resolution”).
(ii) . Any Special Meeting Demand must be (A1) be delivered to the secretary of the Company Secretary at the principal executive offices of the Company, Company and (B2) be signed by the demanding stockholders (the “Demanding Stockholders”) or a duly authorized agent of the Demanding Stockholders, (C) provide, as to the stockholders of record executing the request, (x) the names and addresses of such stockholders, as they appear on the Company’s books and records, (y) the number of shares of Common Stock which are owned of record by each of such stockholders, and (z) in the case of the shares of Common Stock that are beneficially owned by another Person, an executed certification by the holder of record that such stockholder has executed such Special Meeting Demand only after obtaining instructions to do so from such Beneficial Owner and attaching evidence thereof, and (D) otherwise fulfill the requirements of clauses (c)(i)-(v) in the last paragraph of Section 2 of Article II of the Amended and Restated By-laws of the Company (such provisions to apply mutatis mutandis to the “Demanding Stockholders” as if they were the “stockholder” referred to therein).
(iiiii) After receipt of a Special Meeting Demand Demands in proper form and in accordance with this Section 23(e) 23.3 from Demanding Stockholders holding the Requisite Percentage, the Board of Directors shall take such actions as it deems necessary or desirable to cause the Qualifying Offer Resolution to be so submitted to a vote of stockholders at a Special Meeting to be convened within one hundred twenty (120) 90 days following the Board of Directors’ receipt of the Special Meeting Demand Demands from Demanding Stockholders holding the Requisite Percentage (the “Special Meeting Period”) by including a proposal relating to adoption of the Qualifying Offer Resolution in the proxy materials of the Company for the Special Meeting; provided, however, that if the Company at any time during the Special Meeting Period and prior to a vote on the Qualifying Offer Resolution enters into a Definitive Acquisition Agreement, the date of the Special Meeting Period may be extended (and any extended, or the Special Meeting called in connection therewith may be cancelled) canceled, if the Qualifying Offer Resolution is separately submitted to a vote at the same meeting as the Definitive Acquisition Agreement.
(iv) . Subject to the requirements of applicable law, the Board of Directors may take a position in favor of or opposed to the adoption of the Qualifying Offer Resolution, or no position with respect to the Qualifying Offer Resolution, as it determines to be appropriate in the exercise of its fiduciary duties.
(viii) If In the event that no Person has become an Acquiring Person prior to the Exemption Date and the Qualifying Offer continues to be a Qualifying Offer and either (A) the Special Meeting has not been convened on or prior to the last day of the Special Meeting Period (the “Outside Meeting Date”) or (B) if, at the Special Meeting at which a quorum is present, a majority of the shares of Common Stock outstanding as of the record date for the Special Meeting selected by the Board of Directors (excluding shares of Common Stock beneficially owned Beneficially Owned by the Person making the Qualifying Offer or by and such Person’s Affiliates or AssociatesRelated Persons) shall vote in favor of the Qualifying Offer Resolution, then the Qualifying Offer shall be exempt from the application of this Agreement in all respects to such Qualifying Offer as long as it remains a Qualifying Offer, such exemption to be effective on the Close of Business on the earlier of (1) the Outside Meeting Date or (2) the date on which the results of the vote on the Qualifying Offer Resolution at the Special Meeting are certified as official by the appointed inspectors of election for the Special Meeting, as the case may be (such date, the “Exemption Date”). Notwithstanding anything herein to the contrary, no action or vote by stockholders not in compliance with the provisions of this Section 23(e) shall serve to exempt any offer from the terms of this Agreement.
(vi) Immediately upon the Close of Business on the Exemption Date, and without any further action and without any notice, the right to exercise the Rights with respect to the Qualifying Offer will terminate and, notwithstanding anything in this Agreement to the contrary, the consummation of the Qualifying Offer shall not cause the offeror (or its Affiliates and/or Associates) to become an Acquiring Person; and the Rights shall immediately expire and have no further force and effect upon such consummation.or
Appears in 1 contract
Samples: Rights Agreement
Qualifying Offer. (i) If In the event (A) the Company receives a Qualifying Offer, (B) a sufficient number of shares of Common Stock have been tendered into the Qualifying Offer and not withdrawn to meet the Minimum Tender Condition and (C) the Board of Directors has not redeemed the outstanding Rights or exempted such Qualifying Offer from the terms of this Agreement or called a special meeting of stockholders for the purpose of voting on whether or not to exempt such Qualifying Offer from the terms of this Agreement, in each case, by the Close of Business on the date that is ninety (90) 90 days following the commencement of such Qualifying Offer (within the meaning of Rule 14d-2(a) under of the Exchange Act) Act Regulations (the “Board Evaluation Period”), then the holders of record (or their duly authorized proxy) of at least 25% or more of the shares of Common Stock then outstanding (excluding shares of Common Stock beneficially owned that are Beneficially Owned by the Person making the Qualifying Offer or by and such Person’s Affiliates or AssociatesRelated Persons) (the “Requisite Percentage”) may submit to the Board of DirectorsBoard, not earlier than ninety (90) days and not no later than one hundred and twenty (120) 60 days following the commencement end of such Qualifying Offer (within the meaning of Rule 14d-2(a) under the Exchange Act)Board Evaluation Period, a written demand complying with the terms of this Section 23(e) 23.3 (the “Special Meeting Demand”) directing the Board of Directors to submit to a vote of stockholders at a special meeting of the stockholders of the Company (a “Special Meeting”) a resolution exempting such Qualifying Offer from the provisions of this Agreement (the “Qualifying Offer Resolution”).
(ii) . Any Special Meeting Demand must be (A1) be delivered to the secretary of the Company Secretary at the principal executive offices of the Company, Company and (B2) be signed by the demanding stockholders (the “Demanding Stockholders”) or a duly authorized agent of the Demanding Stockholders, (C) provide, as to the stockholders of record executing the request, (x) the names and addresses of such stockholders, as they appear on the Company’s books and records, (y) the number of shares of Common Stock which are owned of record by each of such stockholders, and (z) in the case of the shares of Common Stock that are beneficially owned by another Person, an executed certification by the holder of record that such stockholder has executed such Special Meeting Demand only after obtaining instructions to do so from such Beneficial Owner and attaching evidence thereof, and (D) otherwise fulfill the requirements of clauses (c)(i)-(v) in the last paragraph of Section 2 of Article II of the Amended and Restated By-laws of the Company (such provisions to apply mutatis mutandis to the “Demanding Stockholders” as if they were the “stockholder” referred to therein).
(iiiii) After receipt of a Special Meeting Demand Demands in proper form and in accordance with this Section 23(e) 23.3 from Demanding Stockholders holding the Requisite Percentage, the Board of Directors shall take such actions as it deems necessary or desirable to cause the Qualifying Offer Resolution to be so submitted to a vote of stockholders at a Special Meeting to be convened within one hundred twenty (120) 90 days following the Board of Directors’ receipt of the Special Meeting Demand Demands from Demanding Stockholders holding the Requisite Percentage (the “Special Meeting Period”) by including a proposal relating to adoption of the Qualifying Offer Resolution in the proxy materials of the Company for the Special Meeting; provided, however, that if the Company at any time during the Special Meeting Period and prior to a vote on the Qualifying Offer Resolution enters into a Definitive Acquisition Agreement, the date of the Special Meeting Period may be extended (and any extended, or the Special Meeting called in connection therewith may be cancelled) canceled, if the Qualifying Offer Resolution is separately submitted to a vote at the same meeting as the Definitive Acquisition Agreement.
(iv) . Subject to the requirements of applicable law, the Board of Directors may take a position in favor of or opposed to the adoption of the Qualifying Offer Resolution, or no position with respect to the Qualifying Offer Resolution, as it determines to be appropriate in the exercise of its fiduciary duties.
(viii) If In the event that no Person has become an Acquiring Person prior to the Exemption Date and the Qualifying Offer continues to be a Qualifying Offer and either (A) the Special Meeting has not been convened on or prior to the last day of the Special Meeting Period (the “Outside Meeting Date”) or (B) if, at the Special Meeting at which a quorum is present, a majority of the shares of Common Stock outstanding as of the record date for the Special Meeting selected by the Board of Directors (excluding shares of Common Stock beneficially owned Beneficially Owned by the Person making the Qualifying Offer or by and such Person’s Affiliates or AssociatesRelated Persons) shall vote in favor of the Qualifying Offer Resolution, then the Qualifying Offer shall be exempt from the application of this Agreement in all respects to such Qualifying Offer as long as it remains a Qualifying Offer, such exemption to be effective on the Close of Business on the earlier of (1) the Outside Meeting Date or (2) the date on which the results of the vote on the Qualifying Offer Resolution at the Special Meeting are certified as official by the appointed inspectors of election for the Special Meeting, as the case may be (such earlier date, the “Exemption Date”). Notwithstanding anything herein to the contrary, no action or vote by stockholders not in compliance with the provisions of this Section 23(e) 23.3 shall serve to exempt any offer or consummation thereof from the terms of this Agreement.
(vi) . Immediately upon the Close of Business on the Exemption Date, and without any further action and without any notice, the right to exercise the Rights with respect to the Qualifying Offer will terminate and, notwithstanding anything in this Agreement to the contrary, the consummation of the Qualifying Offer shall not cause the offeror (or its Affiliates and/or AssociatesRelated Persons) to become an Acquiring Person; , and the Rights shall immediately expire and have no further force and effect upon such consummation.
Appears in 1 contract
Samples: Rights Agreement (Cubic Corp /De/)
Qualifying Offer. (i) If the Company receives a “Qualifying Offer” (as defined in the Rights Agreement) that has not been terminated and continues to be a Qualifying Offer for the period hereinafter described and the Board of Directors has not redeemed the outstanding Rights or Rights, exempted such Qualifying Offer from the terms of this the Rights Agreement or called a special meeting of for stockholders for the purpose of voting to vote on whether or not to exempt such the Qualifying Offer from the terms of this Agreement, in each case, by the Close of Business on the date that is Rights Agreement within ninety (90) business days following the commencement of such Qualifying Offer Offer, and if, within ninety (within 90) to one hundred twenty (120) business days following commencement of such Qualifying Offer, the meaning of Rule 14d-2(a) under Company receives a notice in compliance with the Exchange Act) (the “Board Evaluation Period”), then the Rights Agreement from holders of record (or their duly authorized proxy) of 25% or more at least ten percent (10%) of the shares of Common Stock then outstanding Shares (excluding shares of Common Stock beneficially owned by the Person making the Qualifying Offer or by such Person’s offeror and its Affiliates or and Associates) (the “Requisite Percentage”) may submit to the Board of Directors, not earlier than ninety (90) days and not later than one hundred and twenty (120) days following the commencement of such Qualifying Offer (within the meaning of Rule 14d-2(a) under the Exchange Act), a written demand complying with the terms of this Section 23(e) (the “Special Meeting Demand”) directing the Board of Directors to submit to a vote of stockholders at requesting a special meeting of the Company’s stockholders of the Company (a “Special Meeting”) to vote on a resolution exempting such to exempt the Qualifying Offer from the provisions of this Agreement (the “Qualifying Offer Resolution”).
(ii) Any Special Meeting Demand must (A) be delivered to from the secretary terms of the Company at the principal executive offices of the CompanyRights Agreement, (B) be signed by the demanding stockholders (the “Demanding Stockholders”) or a duly authorized agent of the Demanding Stockholders, (C) provide, as to the stockholders of record executing the request, (x) the names and addresses of such stockholders, as they appear on the Company’s books and records, (y) the number of shares of Common Stock which are owned of record by each of such stockholders, and (z) in the case of the shares of Common Stock that are beneficially owned by another Person, an executed certification by the holder of record that such stockholder has executed such Special Meeting Demand only after obtaining instructions to do so from such Beneficial Owner and attaching evidence thereof, and (D) otherwise fulfill the requirements of clauses (c)(i)-(v) in the last paragraph of Section 2 of Article II of the Amended and Restated By-laws of the Company (such provisions to apply mutatis mutandis to the “Demanding Stockholders” as if they were the “stockholder” referred to therein).
(iii) After receipt of a Special Meeting Demand in proper form and in accordance with this Section 23(e) from Demanding Stockholders holding the Requisite Percentage, then the Board of Directors shall take must call and hold such actions necessary or desirable to cause the Qualifying Offer Resolution to be so submitted to a vote of stockholders at a Special Meeting to be convened within one hundred twenty (120) days following the Board of Directors’ receipt of the Special Meeting Demand special meeting (the “Special Meeting PeriodMeeting”) by including a proposal relating to adoption the ninetieth (90th) business day following receipt of the Qualifying Offer Resolution in the proxy materials of the Company for the Special Meeting; provided, however, that if the Company at any time during the Special Meeting Period and prior to a vote on the Qualifying Offer Resolution enters into a Definitive Acquisition Agreement, the Special Meeting Period may be extended (and any Special Meeting called in connection therewith may be cancelled) if the Qualifying Offer Resolution is separately submitted to a vote at the same meeting as the Definitive Acquisition Agreement.
(iv) Subject to the requirements of applicable law, the Board of Directors may take a position in favor of or opposed to the adoption of the Qualifying Offer Resolution, or no position with respect to the Qualifying Offer Resolution, as it determines to be appropriate in the exercise of its fiduciary duties.
(v) If no Person has become an Acquiring Person prior to the Exemption Date and the Qualifying Offer continues to be a Qualifying Offer and either (A) the Special Meeting has not been convened on or prior to the last day of the Special Meeting Period stockholder notice (the “Outside Meeting Date”) or (B) if, at the Special Meeting at which ). If prior to holding a quorum is present, a majority of the shares of Common Stock outstanding as of the record date for the Special Meeting selected by the Board of Directors (excluding shares of Common Stock beneficially owned by the Person making the Qualifying Offer or by such Person’s Affiliates or Associates) shall vote in favor of the Qualifying Offer Resolution, then the Qualifying Offer shall be exempt from the application of this Agreement in all respects to such Qualifying Offer as long as it remains a Qualifying Offer, such exemption to be effective on the Close of Business on (1) the Outside Meeting Date or (2) the date on which the results of the vote on the Qualifying Offer Resolution at the Special Meeting, the Company enters into an agreement conditioned on the approval by holders of a majority of the outstanding Common Shares with respect to a share exchange, one-step merger, tender offer and back-end merger, consolidation, recapitalization, reorganization, business combination or a similar transaction involving the Company or the direct or indirect acquisition of more than fifty percent (50%) of the Companys consolidated total assets or earning power, the Outside Meeting Date may be extended by the Board of Directors so that stockholders vote on whether to exempt the qualifying offer at the same time as they vote on such agreement. If the Board does not hold the Special Meeting by the Outside Meeting Date to vote on the exemption of the Qualifying Offer, the Qualifying Offer will be deemed exempt from the Rights Agreement ten (10) business days after the Outside Meeting Date. If the Board does hold a Special Meeting and stockholders vote at such meeting in favor of exempting the Qualifying Offer from the terms of the Rights Agreement, the Qualifying Offer will be deemed exempt from the Rights Agreement ten (10) business days after the votes are certified as official by the appointed inspectors inspector of election for the Special Meeting, as the case may be (such date, the “Exemption Date”). Notwithstanding anything herein to the contrary, no action or vote by stockholders not in compliance with the provisions of this Section 23(e) shall serve to exempt any offer from the terms of this Agreementelections.
(vi) Immediately upon the Close of Business on the Exemption Date, and without any further action and without any notice, the right to exercise the Rights with respect to the Qualifying Offer will terminate and, notwithstanding anything in this Agreement to the contrary, the consummation of the Qualifying Offer shall not cause the offeror (or its Affiliates and/or Associates) to become an Acquiring Person; and the Rights shall immediately expire and have no further force and effect upon such consummation.
Appears in 1 contract
Qualifying Offer. (i) If the Company receives a “Qualifying Offer” (as defined in the Rights Agreement) that has not been terminated and continues to be a Qualifying Offer for the period hereinafter described and the Board of Directors has not redeemed the outstanding Rights or Rights, exempted such Qualifying Offer from the terms of this the Rights Agreement or called a special meeting of for stockholders for the purpose of voting to vote on whether or not to exempt such the Qualifying Offer from the terms of this Agreement, in each case, by the Close of Business on the date that is Rights Agreement within ninety (90) business days following the commencement of such Qualifying Offer Offer, and if, within ninety (within 90) to one hundred twenty (120) business days following commencement of such Qualifying Offer, the meaning of Rule 14d-2(a) under Company receives a notice in compliance with the Exchange Act) (the “Board Evaluation Period”), then the Rights Agreement from holders of record (or their duly authorized proxy) of 25% or more at least ten percent (10%) of the shares of Common Stock then outstanding Shares (excluding shares of Common Stock beneficially owned by the Person making the Qualifying Offer or by such Person’s offeror and its Affiliates or and Associates) (the “Requisite Percentage”) may submit to the Board of Directors, not earlier than ninety (90) days and not later than one hundred and twenty (120) days following the commencement of such Qualifying Offer (within the meaning of Rule 14d-2(a) under the Exchange Act), a written demand complying with the terms of this Section 23(e) (the “Special Meeting Demand”) directing the Board of Directors to submit to a vote of stockholders at requesting a special meeting of the Company’s stockholders of the Company (a “Special Meeting”) to vote on a resolution exempting such to exempt the Qualifying Offer from the provisions of this Agreement (the “Qualifying Offer Resolution”).
(ii) Any Special Meeting Demand must (A) be delivered to from the secretary terms of the Company at the principal executive offices of the CompanyRights Agreement, (B) be signed by the demanding stockholders (the “Demanding Stockholders”) or a duly authorized agent of the Demanding Stockholders, (C) provide, as to the stockholders of record executing the request, (x) the names and addresses of such stockholders, as they appear on the Company’s books and records, (y) the number of shares of Common Stock which are owned of record by each of such stockholders, and (z) in the case of the shares of Common Stock that are beneficially owned by another Person, an executed certification by the holder of record that such stockholder has executed such Special Meeting Demand only after obtaining instructions to do so from such Beneficial Owner and attaching evidence thereof, and (D) otherwise fulfill the requirements of clauses (c)(i)-(v) in the last paragraph of Section 2 of Article II of the Amended and Restated By-laws of the Company (such provisions to apply mutatis mutandis to the “Demanding Stockholders” as if they were the “stockholder” referred to therein).
(iii) After receipt of a Special Meeting Demand in proper form and in accordance with this Section 23(e) from Demanding Stockholders holding the Requisite Percentage, then the Board of Directors shall take must call and hold such actions necessary or desirable to cause the Qualifying Offer Resolution to be so submitted to a vote of stockholders at a Special Meeting to be convened within one hundred twenty (120) days following the Board of Directors’ receipt of the Special Meeting Demand special meeting (the “Special Meeting PeriodMeeting”) by including a proposal relating to adoption the ninetieth (90th) business day following receipt of the Qualifying Offer Resolution in stockholder notice (the proxy materials of the Company for the Special Meeting; provided, however, that if the Company at any time during the Special “Outside Meeting Period and Date”). If prior to holding a vote on the Qualifying Offer Resolution at the Special Meeting, the Company enters into an agreement conditioned on the approval by holders of a Definitive Acquisition Agreementmajority of the outstanding Common Shares with respect to a share exchange, one-step merger, tender offer and back-end merger, consolidation, recapitalization, reorganization, business combination or a similar transaction involving the Company or the direct or indirect acquisition of more than fifty percent (50%) of the Company’s consolidated total assets or earning power, the Special Outside Meeting Period Date may be extended (and any Special Meeting called in connection therewith may be cancelled) if the Qualifying Offer Resolution is separately submitted to a vote at the same meeting as the Definitive Acquisition Agreement.
(iv) Subject to the requirements of applicable law, by the Board of Directors may take so that stockholders vote on whether to exempt the qualifying offer at the same time as they vote on such agreement. If the Board does not hold the Special Meeting by the Outside Meeting Date to vote on the exemption of the Qualifying Offer, the Qualifying Offer will be deemed exempt from the Rights Agreement ten (10) business days after the Outside Meeting Date. If the Board does hold a position Special Meeting and stockholders vote at such meeting in favor of or opposed to the adoption of exempting the Qualifying Offer Resolutionfrom the terms of the Rights Agreement, the Qualifying Offer will be deemed exempt from the Rights Agreement ten (10) business days after the votes are certified as official by the inspector of elections. A “Qualifying Offer,” in summary terms, is an offer determined by a majority of the independent members of the Board (as such independence is determined by the Board in accordance with the listing rules of the New York Stock Exchange) to have the following characteristics, among others, which are generally intended to preclude offers that are coercive, abusive or highly contingent: • is a fully financed all-cash tender offer or an exchange offer offering shares of common stock of the offeror, or no position a combination thereof, for any and all of the outstanding Common Shares (whether such shares are outstanding at the commencement of the offer or become outstanding thereafter upon the exercise or conversion of options or other securities that are outstanding at the commencement of the offer); • is an offer whose per share offer price and consideration represent a reasonable premium over the highest reported per share market price of the Common Shares in the immediately preceding twenty four (24) months immediately preceding the date on which the offer is commenced; provided that to the extent that an offer includes common stock of the offeror, such per share offer price with respect to such common stock of the offeror will be determined for purposes of the foregoing provision using the lowest reported market price for common stock of the offeror during the five (5) trading days immediately preceding and the five (5) trading days immediately following the date on which the offer is commenced; • is an offer that, within twenty (20) business days after the commencement date of the offer (or within ten (10) business days after any increase in the offer consideration), does not result in a nationally recognized investment banking firm retained by the Board rendering an opinion to the Board that the consideration being offered to the holders of the Common Shares is either inadequate or unfair; • is an offer that is subject only to the minimum tender condition described below and other customary terms and conditions, which conditions shall not include any financing, funding or similar condition or any requirements with respect to the offeror or its agents or any other Person being permitted any due diligence with respect to the books, records, management, accountants and other outside advisors of the Company; • is an offer pursuant to which the Company has received an irrevocable written commitment of the offeror that the offer will remain open for at least ninety (90) business days and, if a Special Meeting is duly requested by stockholders in accordance with the terms of the Rights Agreement, for at least ten (10) business days after the date of the Special Meeting or, if no Special Meeting is held within ninety (90) business days following receipt of the Special Meeting notice delivered in accordance with the Rights Agreement, for at least ten (10) business days following such ninety (90) business day period; • an offer that is conditioned on a minimum of at least two-thirds of the outstanding Common Shares not held by the Person making such offer (and such Person’s Related Persons) being tendered and not withdrawn as of the offer’s expiration date, which condition shall not be waivable; • an offer pursuant to which the Company has received an irrevocable written commitment by the offeror to consummate as promptly as practicable upon successful completion of the offer a second-step transaction whereby all Common Shares not tendered into the offer will be acquired at the same consideration per share actually paid pursuant to the offer, subject to statutory appraisal rights, if any; • an offer pursuant to which the Company has received an irrevocable, legally binding written commitment of the offeror that no amendments will be made to the offer to reduce the consideration being offered or to otherwise change the terms of the offer in a way that is adverse to a tendering stockholder (other than extensions of the offer consistent with the terms of the Rights Agreement); and • an offer that is otherwise in the best interests of the Company and its stockholders. As discussed in the Rights Agreement, additional requirements apply to offers not consisting solely of cash consideration. Notwithstanding the inclusion of a Qualifying Offer Resolutionprovision in the Rights Agreement, as it determines the Board reserves the right to be reject any Qualifying Offer or any other tender or exchange offer or other acquisition proposal, or take any other action with respect to any Qualifying Offer or any tender or exchange offer or other acquisition proposal that the Board believes is necessary or appropriate in the exercise of its fiduciary duties.
(v) If no Person has become an Acquiring Person prior to the Exemption Date and the Qualifying Offer continues to be a Qualifying Offer and either (A) the Special Meeting has not been convened on or prior to the last day of the Special Meeting Period (the “Outside Meeting Date”) or (B) if, at the Special Meeting at which a quorum is present, a majority of the shares of Common Stock outstanding as of the record date for the Special Meeting selected by the Board of Directors (excluding shares of Common Stock beneficially owned by the Person making the Qualifying Offer or by such Person’s Affiliates or Associates) shall vote in favor of the Qualifying Offer Resolution, then the Qualifying Offer shall be exempt from the application of this Agreement in all respects to such Qualifying Offer as long as it remains a Qualifying Offer, such exemption to be effective on the Close of Business on (1) the Outside Meeting Date or (2) the date on which the results of the vote on the Qualifying Offer Resolution at the Special Meeting are certified as official by the appointed inspectors of election for the Special Meeting, as the case may be (such date, the “Exemption Date”). Notwithstanding anything herein to the contrary, no action or vote by stockholders not in compliance with the provisions of this Section 23(e) shall serve to exempt any offer from the terms of this Agreement.
(vi) Immediately upon the Close of Business on the Exemption Date, and without any further action and without any notice, the right to exercise the Rights with respect to the Qualifying Offer will terminate and, notwithstanding anything in this Agreement to the contrary, the consummation of the Qualifying Offer shall not cause the offeror (or its Affiliates and/or Associates) to become an Acquiring Person; and the Rights shall immediately expire and have no further force and effect upon such consummation.
Appears in 1 contract
Samples: Rights Agreement (Tempur Sealy International, Inc.)
