Standstill and Voting. a. Each member of the Investor Group agrees that during the Standstill Period, the Investor Group and the Investor Group Affiliates will not (and they will not assist or encourage others to), directly or indirectly, in any manner, without prior written approval of the Board: i. take any actions, including acquiring, seeking to acquire or agreeing to acquire (directly or indirectly, whether by market purchases, private purchases, tender or exchange offer, through the acquisition of control of another person, by joining a “group” (within the meaning of Section 13(d)(3) of the Exchange Act), through swap or hedging transactions or otherwise) any shares of Common Stock (or Beneficial Ownership thereof) or any securities convertible or exchangeable into or exercisable for any shares of Common Stock (or Beneficial Ownership thereof) (including any derivative securities or any other rights decoupled from the underlying securities of the Company) such that the Ancora Investors would Beneficially Own in excess of 7.0% of the then-outstanding shares of Common Stock or the Pacific Point Investors would Beneficially Own in excess of 2.9% of the then-outstanding shares of Common Stock; ii. other than in open market sale transactions where the identity of the purchaser is not known, sell, offer, or agree to sell, directly or indirectly, through swap or hedging transactions or otherwise, the securities of the Company or any rights decoupled from the underlying securities held by the Investor Group to any person or entity not (A) a party to this Agreement, (B) a member of the Board, (C) an officer of the Company or (D) an Affiliate of the Investor Group (any person or entity not set forth in clauses (A)-(D) shall be referred to as a “Third Party”) that would result in such Third Party, together with its Affiliates, owning, controlling or otherwise having any, beneficial or other ownership interest representing in the aggregate in excess of 5.0% of the shares of Common Stock outstanding at such time; (A) advise or knowingly encourage or influence any other Person or knowingly assist any third party in so encouraging, assisting or influencing any other 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 the Board’s recommendation in connection with such matter) or (B) advise, influence or encourage any Person with respect to, or effect or seek to effect, whether alone or in concert with others, the election, nomination or removal of a director other than as permitted by Section 1; iv. solicit proxies or written consents of shareholders or conduct any other type of referendum (binding or non-binding) (including any “withhold,” “vote no” or similar campaign) with respect to the shares of Common Stock, or from the holders of the shares of Common Stock, 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 knowingly encourage or assist any 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 Common Stock (other than any encouragement, advice or influence that is consistent with the Board’s recommendation in connection with such matter); (A) form, join or in any other way participate in a “group” with respect to any shares of Common Stock (other than a “group” solely consisting of the Investor Group or Investor Group Affiliates), (B) grant any proxy, consent or other authority to vote with respect to any matters to be voted on by the Company’s shareholders (other than to the named proxies included in the Company’s proxy card for any Shareholder Meeting (as defined below) or in accordance with Section 2(b)) or (C) agree to deposit or deposit any shares of Common Stock or any securities convertible or exchangeable into or exercisable for any such shares of Common Stock in any voting trust, agreement or similar arrangement (other than (I) to the named proxies included in the Company’s proxy card for any Shareholder Meeting, (II) customary brokerage accounts, margin accounts, prime brokerage accounts and the like or (III) any agreement solely among the Investor Group or Investor Group Affiliates); vi. separately or in conjunction with any third party 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 or privately, with or without conditions), indicate an interest in or 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 the assets or businesses of the Company or any of its subsidiaries or actively encourage or initiate or support any other third party in any such activity; provided, however, that the Investor Group and Investor Group Affiliates shall be permitted to (A) sell or tender their shares of Common Stock, and otherwise receive consideration, pursuant to any such transaction and (B) vote on any such transaction in accordance with Section 2(b); (A) present at any Shareholder Meeting any proposal for consideration for action by the shareholders or (B) call or seek to call, or request the call of, alone or in concert with others, or support another shareholder’s call for, any meeting of shareholders, whether or not such a meeting is permitted by the Company’s organizational documents; viii. take any action in support of or make any proposal or request that constitutes: (A) controlling, changing or influencing the Board, management or policies of the Company, including any plans or proposals to change the number or term of directors or the removal of any directors, or to fill any vacancies on the Board; (B) any material change in the capitalization, stock repurchase programs and practices or dividend policy of the Company; (C) any other material change in the Company’s management, business or corporate structure; (D) seeking to have the Company waive or make amendments or modifications to the Company’s charter or bylaws, or other actions that may impede or facilitate the acquisition of control of the Company by any person; (E) causing a class of securities of the Company to be delisted from, or to cease to be authorized to be quoted on, any securities exchange; or (F) causing a class of securities of the Company to become eligible for termination of registration pursuant to Section 12(g)(4) of the Exchange Act, in each case with respect to the foregoing clauses (A) through (F), except as set forth in Section 1; ix. make any request for shareholder list materials or other books and records of the Company under Section 220 of the Delaware General Corporation Law or otherwise; provided that if any Investor Group Appointee (or any Replacement Appointee, as applicable) makes such a request solely in such Investor Group Appointee’s capacity as a director in a manner consistent with his or her fiduciary duties to the Company, such material and other books and records may not be shared with any member of the Investor Group or any Investor Group Affiliate, notwithstanding any other provision of this Agreement; x. except in the case of fraud by the Company, institute, solicit, join (as a party) or knowingly assist any litigation, arbitration or other proceeding against the Company or any of its current or former directors or officers (including derivative actions), other than (A) litigation by the Investor Group to enforce the provisions of this Agreement, (B) counterclaims with respect to any proceeding initiated by, or on behalf of, the Company or its Affiliates against the Investor Group or any Investor Group Appointee (or Replacement Appointee, as applicable) and (C) the exercise of statutory appraisal rights; provided that the foregoing shall not prevent the Investor Group from responding to or complying with a validly issued legal process (and the Company agrees that this Section 2(a)(x) shall apply mutatis mutandis to the Company and its directors, officers, employees and agents (in each case, acting in such capacity) and Affiliates with respect to the Investor Group); xi. encourage, facilitate, support, participate in or enter into any negotiations, agreements, arrangements or understandings with respect to, the taking of any actions by any other Person in connection with the foregoing that is prohibited to be taken by the Investor Group (except as set forth in Section 1); or xii. request that the Company, directly or indirectly, amend or waive any provision of this Section 2 (including this clause (a)(xii)), other than through non-public communications with the Company that would not reasonably be expected to trigger public disclosure obligations for any of the Parties. The foregoing provisions of this Section 2(a) shall not be deemed to prevent any member of the Investor Group from (i) communicating privately with the Board or any of the Company’s executive officers regarding any matter, so long as such communications are not intended to, and would not reasonably be expected to, require the Company or any member of the Investor Group to make public disclosure with respect thereto, (ii) communicating privately with shareholders of the Company and are not made with an intent to otherwise violate this Section 2(a), Section 3 or any other provision of this Agreement, (iii) identifying potential director candidates to serve on the Board so long as such actions do not create a public disclosure obligation for the Investor Group or the Company, are not publicly disclosed by the Investor Group or its Affiliates and are undertaken on a basis reasonably designed to be confidential; (iv) making or sending private communications to investors in any member of the Investor Group or any of their Affiliates or prospective investors in any member of the Investor Group or any of their Affiliates, provided that such statements or communications (1) are based on publicly available information; and (2) are not reasonably expected to be publicly disclosed and are understood by all parties to be confidential communications; or (v) taking any action to the extent necessary to comply with any law, rule or regulation or any action required by any governmental or regulatory authority or stock exchange that has, or may have, jurisdiction over any member of the Investor Group. Furthermore, for the avoidance of doubt, nothing in this Agreement shall be deemed to restrict in any way the Investor Group Appointees (or any Replacement Appointee, as applicable) in the exercise of their fiduciary duties under applicable law as directors of the Company. b. In respect of any vote or consent of the Company’s shareholders during the Standstill Period (whether at an annual or special shareholder meeting or pursuant to an action by written consent of the shareholders) (each a “Shareholder Meeting”), the Investor Group and the members of the Investor Group shall appear or act in person or by proxy and vote all shares of Common Stock Beneficially Owned by them in accordance with the recommendation of the Board with respect to (i) the election, removal and/or replacement of directors (a “Director Proposal”), (ii) the ratification of the appointment of the Company’s independent registered public accounting firm and (iii) any other proposal submitted to the Company’s shareholders at a Shareholder Meeting, in each case as such recommendation of the Board is set forth in the applicable definitive proxy statement filed in respect thereof; provided, however, that in the event Institutional Shareholder Services Inc. (“ISS”) and Glass Lewis & Co., LLC (“Glass Lewis”) make a recommendation that differs from the recommendation of the Board with respect to any proposal submitted to the shareholders at any Shareholder Meeting (other than Director Proposals), the Investor Group and the members of the Investor Group are permitted to vote the shares of Common Stock Beneficially Owned by them at such Shareholder Meeting in accordance with the ISS and Glass Lewis recommendation; provided, further, that the Investor Group and the members of the Investor Group shall be entitled to vote the shares of Common Stock Beneficially Owned by them in their sole discretion with respect to (A) any publicly announced proposal relating to any transaction pursuant to which any person is or becomes a Beneficial Owner, directly or indirectly, of securities of the Company representing more than 50% of the Company’s then-outstanding equity interests and voting power, a merger, stock-for-stock transaction, spin-off, acquisition, disposition of all or substantially all of the assets of the Company and its subsidiaries or other business combination involving the Company, (B) any financing, recapitalization, restructuring, share issuance or similar extraordinary transaction or (C) the implementation of takeover defenses not in existence as of the date of this Agreement, in each case, that requires a vote of the Company’s shareholders.

Appears in 1 contract

Samples: Cooperation Agreement (C. H. Robinson Worldwide, Inc.)

Standstill and Voting. a. Each member of the Investor Group agrees ~~that~~ that, during the Standstill Period, the Investor Group and ~~the~~ Investor Group Affiliates will not (and they will not assist or encourage others to), directly or indirectly, in any manner, without prior written approval of the Board: i. take any actions, including acquiring, seeking to acquire or agreeing to acquire (directly or indirectly, whether by market purchases, private purchases, tender or exchange offer, through the acquisition of control of another person, by joining a “group” (within the meaning of Section 13(d)(3) of the Exchange Act), through swap or hedging transactions or otherwise) any shares of Common Stock (or Beneficial Ownership thereof) or any securities convertible or exchangeable into or exercisable for any shares of Common Stock (or Beneficial Ownership thereof) (including any derivative securities or any other rights decoupled from the underlying securities of the Company) such that the Ancora Investors would Beneficially Own in excess of 7.0% of the then-outstanding shares of Common Stock or the Pacific Point Investors would Beneficially Own in excess of 2.9% of the then-outstanding shares of Common Stock; ii. other than in open market sale transactions where the identity of the purchaser is not known, sell, offer, or agree to sell, directly or indirectly, through swap or hedging transactions or otherwise, the securities of the Company or any rights decoupled from the underlying securities held by the Investor Group to any person or entity not (A) a party to this Agreement, (B) a member of the Board, (C) an officer of the Company or (D) an Affiliate of the Investor Group (any person or entity not set forth in clauses (A)-(D) shall be referred to as a “Third Party”) that would result in such Third Party, together with its Affiliates, owning, controlling or otherwise having any, beneficial or other ownership interest representing in the aggregate in excess of 5.0% of the shares of Common Stock outstanding at such time; iii. (A) advise or knowingly encourage or influence any other Person or knowingly assist any third party in so encouraging, assisting or influencing any other 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 the Board’s recommendation in connection with such matter) or (B) advise, influence or encourage any Person with respect to, or effect or seek to effect, whether alone or in concert with others, the election, nomination or removal of a ~~director~~ director, other than as permitted by Section 1; iv. solicit proxies or written consents of shareholders or conduct any other type of referendum (binding or non-binding) (including any “withhold,” “vote no” or similar campaign) with respect to the shares of Common Stock, or from the holders of the shares of Common Stock, 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 knowingly encourage or assist any 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 Common Stock (other than any encouragement, advice or influence that is consistent with the Board’s recommendation in connection with such matter); (A) form, join or in any other way participate in a “group” with respect to any shares of Common Stock (other than a “group” solely consisting of the Investor Group or Investor Group Affiliates), (B) grant any proxy, consent or other authority to vote with respect to any matters to be voted on by the Company’s shareholders (other than to the named proxies included in the Company’s proxy card for any Shareholder Meeting (as defined below) or in accordance with Section 2(b)) or (C) agree to deposit or deposit any shares of Common Stock or any securities convertible or exchangeable into or exercisable for any such shares of Common Stock in any voting trust, agreement or similar arrangement (other than (I) to the named proxies included in the Company’s proxy card for any Shareholder Meeting, (II) customary brokerage accounts, margin accounts, prime brokerage accounts and the like or (III) any agreement solely among the Investor Group or Investor Group Affiliates); vi. separately or in conjunction with any third party 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 or privately, with or without conditions), indicate an interest in or 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 the assets or businesses of the Company or any of its subsidiaries or actively encourage or initiate or support any other third party in any such activity; provided, however, that the Investor Group and Investor Group Affiliates shall be permitted to (A) sell or tender their shares of Common Stock, and otherwise receive consideration, pursuant to any such transaction and (B) vote on any such transaction in accordance with Section 2(b); (A) present at any Shareholder Meeting any proposal for consideration for action by the shareholders or (B) call or seek to call, or request the call of, alone or in concert with others, or support another shareholder’s call for, any meeting of shareholders, whether or not such a meeting is permitted by the Company’s organizational documents; viii. take any action in support of or make any proposal or request that constitutes: (A) controlling, changing or influencing the Board, management or policies of the Company, including any plans or proposals to change the number or term of directors or the removal of any directors, or to fill any vacancies on the Board; (B) any material change in the capitalization, stock repurchase programs and practices or dividend policy of the Company; (C) any other material change in the Company’s management, business or corporate structure; (D) seeking to have the Company waive or make amendments or modifications to the Company’s charter or bylaws, or other actions that may impede or facilitate the acquisition of control of the Company by any person; (E) causing a class of securities of the Company to be delisted from, or to cease to be authorized to be quoted on, any securities exchange; or (F) causing a class of securities of the Company to become eligible for termination of registration pursuant to Section 12(g)(4) of the Exchange Act, in each case with respect to the foregoing clauses (A) through (F), except as set forth in Section 1; ix. make any request for shareholder list materials or other books and records of the Company under Section 220 of the Delaware General Corporation Law or otherwise; provided that if any director, including any Investor Group Appointee (or any Replacement Appointee, as applicable) ), makes such a request solely in such ~~Investor Group Appointee~~person’s capacity as a director in a manner consistent with his or her fiduciary duties to the Company, such material and other books and records may not be shared with any member of the Investor Group or any Investor Group Affiliate, notwithstanding any other provision of this Agreement; x. except in the case of fraud by the Company, institute, solicit, join (as a party) or knowingly assist any litigation, arbitration or other proceeding against the Company or any of its current or former directors or officers (including derivative actions), other than (A) litigation by the Investor Group to enforce the provisions of this Agreement, (B) counterclaims with respect to any proceeding initiated by, or on behalf of, the Company or its Affiliates against the Investor Group or any Investor Group Appointee (or Replacement Appointee, as applicable) and (C) the exercise of statutory appraisal rights; provided that the foregoing shall not prevent the Investor Group from responding to or complying with a validly issued legal process (and the Company agrees that this Section 2(a)(x) shall apply mutatis mutandis to the Company and its directors, officers, employees and agents (in each case, acting in such capacity) and Affiliates with respect to the Investor Group); xi. encourage, facilitate, support, participate in or enter into any negotiations, agreements, arrangements or understandings with respect to, the taking of any actions by any other Person in connection with the foregoing that is prohibited to be taken by the Investor Group (except as set forth in Section 1); or xii. request that the Company, directly or indirectly, amend or waive any provision of this Section 2 (including this clause (a)(xii)), other than through non-public communications with the Company that would not reasonably be expected to trigger public disclosure obligations for any of the Parties. The foregoing provisions of this Section 2(a) shall not be deemed to prevent any member of the Investor Group from (i) communicating privately with the Board or any of the Company’s executive officers regarding any matter, so long as such communications are not intended to, and would not reasonably be expected to, require the Company or any member of the Investor Group to make public disclosure with respect thereto, (ii) communicating privately with shareholders of the ~~Company and are~~ Company; provided that such communication is not made with an intent to otherwise violate this Section 2(a), Section 3 or any other provision of this Agreement, (iii) identifying potential director candidates to serve on the Board so long as such actions do not create a public disclosure obligation for the Investor Group or the Company, are not publicly disclosed by the Investor Group or its Affiliates and are undertaken on a basis reasonably designed to be confidential; (iv) making or sending private communications to investors in any member of the Investor Group or any of their Affiliates or prospective investors in any member of the Investor Group or any of their Affiliates, provided that such statements or communications (1) are based on publicly available information; and (2) are not reasonably expected to be publicly disclosed and are understood by all parties to be confidential communications; or (v) taking any action to the extent necessary to comply with any law, rule or regulation or any action required by any governmental or regulatory authority or stock exchange that has, or may have, jurisdiction over any member of the Investor Group. Furthermore, for the avoidance of doubt, nothing in this Agreement shall be deemed to restrict in any way any member of the Board, including any Investor Group ~~Appointees~~ Appointee (or any Replacement Appointee, as applicable) ), in the exercise of ~~their~~ his or her fiduciary duties under applicable law as ~~directors~~ a director of the Company. b. In respect of any vote or consent of the Company’s shareholders during the Standstill Period (whether at an annual or special shareholder meeting or pursuant to an action by written consent of the shareholders) (each a “Shareholder Meeting”), the Investor Group and the members of the Investor Group shall appear or act in person or by proxy and vote all shares of Common Stock Beneficially Owned by them in accordance with the recommendation of the Board with respect to (i) the election, removal and/or replacement of directors (a “Director Proposal”), (ii) the ratification of the appointment of the Company’s independent registered public accounting firm and (iii) any other proposal submitted to the Company’s shareholders at a Shareholder Meeting, in each case as such recommendation of the Board is set forth in the applicable definitive proxy statement filed in respect thereof; provided, however, that in the event Institutional Shareholder Services Inc. (“ISS”) and Glass Lewis & Co., LLC (“Glass Lewis”) make a recommendation that differs from the recommendation of the Board with respect to any proposal submitted to the shareholders at any Shareholder Meeting (other than Director Proposals), the Investor Group and the members of the Investor Group are permitted to vote the shares of Common Stock Beneficially Owned by them at such Shareholder Meeting in accordance with the ISS and Glass Lewis recommendation; provided, further, that the Investor Group and the members of the Investor Group shall be entitled to vote the shares of Common Stock Beneficially Owned by them in their sole discretion with respect to (A) any publicly announced proposal relating to any transaction pursuant to which any person is or becomes a Beneficial Owner, directly or indirectly, of securities of the Company representing more than 50% of the Company’s then-outstanding equity interests and voting power, a merger, stock-for-stock transaction, spin-off, acquisition, disposition of all or substantially all of the assets of the Company and its subsidiaries or other business combination involving the Company, (B) any financing, recapitalization, restructuring, share issuance or similar extraordinary transaction or (C) the implementation of takeover defenses not in existence as of the date of this Agreement, in each case, that requires a vote of the Company’s shareholders.

Appears in 1 contract

Samples: Cooperation Agreement (C. H. Robinson Worldwide, Inc.)

Standstill and Voting. a. ~~Each member of the Investor Group agrees~~ The Ancora Parties each agree that during the Standstill Period, the ~~Investor Group~~ Ancora Parties and the ~~Investor Group~~ Ancora Affiliates will not (and they will not assist or encourage others to), directly or indirectly, in any manner, without prior written approval of the Board: i. take any actions, including acquiring, seeking to acquire or agreeing to acquire (directly or indirectly, whether by market purchases, private purchases, tender or exchange offer, through the acquisition of control of another person, by joining a “group” (within the meaning of Section 13(d)(3) of the Exchange Act), through swap or hedging transactions or otherwise) any shares of Common Stock (or Beneficial Ownership thereof) or any securities convertible or exchangeable into or exercisable for any shares of Common Stock (or Beneficial Ownership thereof) (including any derivative securities or any other rights decoupled from the underlying securities of the Company) such that the Ancora ~~Investors~~ Parties would Beneficially Own in excess of ~~7.0% of the then-outstanding shares of Common Stock or the Pacific Point Investors would Beneficially Own in excess of 2.9~~9.9% of the then-outstanding shares of Common Stock; ii. other than in open market sale transactions where the identity of the purchaser is not known, sell, offer, or agree to sell, directly or indirectly, through swap or hedging transactions or otherwise, the securities of the Company or any rights decoupled from the underlying securities held by the ~~Investor Group~~ Ancora Parties to any person or entity ~~not~~ not (A) a party to this Agreement, (B) a member of the Board, (C) an officer of the Company or (D) an Affiliate of the ~~Investor Group~~ Ancora Parties (any person or entity not set forth in clauses (A)-(D) shall be referred to as a “Third Party”) that would result in such Third Party, together with its Affiliates, owning, controlling or otherwise having any, beneficial or other ownership interest representing in the aggregate in excess of ~~5.0~~4.9% of the shares of Common Stock outstanding at such time; (A) advise or knowingly encourage or influence any other Person or knowingly assist any third party in so encouraging, assisting or influencing any other 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 the Board’s recommendation in connection with such matter) or (B) advise, influence or encourage any Person with respect to, or effect or seek to effect, whether alone or in concert with others, the election, nomination or removal of a director other than as permitted by Section 1; iv. solicit proxies or written consents of shareholders or conduct any other type of referendum (binding or non-binding) (including any “withhold,” “vote no” or similar campaign) with respect to the shares of Common Stock, or from the holders of the shares of Common Stock, 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 knowingly encourage or assist any 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 Common Stock (other than any encouragement, advice or influence that is consistent with the Board’s recommendation in connection with such matter); (A) form, join or in any other way participate in a “group” with respect to any shares of Common Stock (other than a “group” solely consisting of the ~~Investor Group~~ Ancora Parties or ~~Investor Group~~ Ancora Affiliates), (B) grant any proxy, consent or other authority to vote with respect to any matters to be voted on by the Company’s shareholders (other than to the named proxies included in the Company’s proxy card for any Shareholder Meeting (as defined below) or in accordance with Section 2(b)) or (C) agree to deposit or deposit any shares of Common Stock or any securities convertible or exchangeable into or exercisable for any such shares of Common Stock in any voting trust, agreement or similar arrangement (other than (I) to the named proxies included in the Company’s proxy card for any Shareholder Meeting, (II) customary brokerage accounts, margin accounts, prime brokerage accounts and the like or (III) any agreement solely among the ~~Investor Group~~ Ancora Parties or ~~Investor Group~~ Ancora Affiliates); ; vi. separately or in conjunction with any third party 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 or privately, with or without conditions), indicate an interest in or 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 the assets or businesses of the Company or any of its subsidiaries or actively encourage or initiate or support any other third party in any such activity; provided, however, that the ~~Investor Group~~ Ancora Parties and ~~Investor Group~~ Ancora Affiliates shall be permitted to (Ai) sell or tender their shares of Common Stock, and otherwise receive consideration, pursuant to any such transaction and (Bii) vote on any such transaction in accordance with Section 2(b); (A) present at any Shareholder Meeting any proposal for consideration for action by the shareholders or (B) call or seek to call, or request the call of, alone or in concert with others, or support another shareholder’s call for, any meeting of shareholders, whether or not such a meeting is permitted by the Company’s organizational documents; viii. take any action in support of or make any proposal or request that constitutes: (A) controlling, changing or influencing the Board, management or policies of the Company, including any plans or proposals to change the number or term of directors or the removal of any directors, or to fill any vacancies on the Board; (B) any material change in the capitalization, stock repurchase programs and practices or dividend policy of the Company; (C) any other material change in the Company’s management, business or corporate structure; (D) seeking to have the Company waive or make amendments or modifications to the Company’s charter or bylaws, or other actions that may impede or facilitate the acquisition of control of the Company by any person; (E) causing a class of securities of the Company to be delisted from, or to cease to be authorized to be quoted on, any securities exchange; or (F) causing a class of securities of the Company to become eligible for termination of registration pursuant to Section 12(g)(4) of the Exchange Act, in each case with respect to the foregoing clauses (A) through (F), except as set forth in Section 1; provided, however, that following the date that is thirty (30) days prior to the deadline for the submission of shareholder nominations for the Company’s 2022 annual meeting of shareholders (the “2022 Annual Meeting”), the Ancora Parties and the Ancora Affiliates may speak to potential director candidates in connection with the 2022 Annual Meeting so long as such conversations do not create a public disclosure obligation for the Ancora Parties or the Company and are undertaken on a basis reasonably designed to be maintained as confidential and solely between the Ancora Parties and such director candidate and otherwise in accordance in all material respects with the Ancora Parties’ normal practices in the circumstances; ix. make any request for shareholder list materials or other books and records of the Company under Section ~~220~~ 00-00-000 of the ~~Delaware General Corporation Law~~ Tennessee Code or otherwise; provided that if any ~~Investor Group~~ Ancora Appointee (or any Replacement Appointee, as applicable) makes such a request solely in such ~~Investor Group~~ Ancora Appointee’s capacity as a director in a manner consistent with his (or ~~her~~ her) fiduciary duties to the Company, such material and other books and records may not be shared with any ~~member~~ other Ancora Party, Member of the ~~Investor Group~~ Ancora Parties or ~~any Investor Group~~ Ancora Affiliate, notwithstanding any other provision of this Agreement; ; x. ~~except in the case of fraud by the Company,~~ institute, solicit, join (as a party) or knowingly assist any litigation, arbitration or other proceeding against the Company or any of its current or former directors or officers (including derivative actions), other than (A) litigation by the ~~Investor Group~~ Ancora Parties to enforce the provisions of this Agreement, (B) counterclaims with respect to any proceeding initiated by, or on behalf of, the Company or its Affiliates against the ~~Investor Group~~ Ancora Parties or any ~~Investor Group~~ Ancora Appointee (or Replacement Appointee, as applicable) and (C) the exercise of statutory appraisal rights; provided that the foregoing shall not prevent the ~~Investor Group~~ Ancora Parties from responding to or complying with a validly issued legal process (and the Company agrees that this Section 2(a)(x) shall apply mutatis mutandis to the Company and its directors, officers, employees and agents (in each case, acting in such capacity) and Affiliates with respect to the ~~Investor Group~~Ancora Parties); xi. encourage, facilitate, support, participate in or enter into any negotiations, agreements, arrangements or understandings with respect to, the taking of any actions by any other Person in connection with the foregoing that is prohibited to be taken by the ~~Investor Group~~ Ancora Parties (except as set forth in Section 1); or xii. request that the Company, directly or indirectly, amend or waive any provision of this Section 2 (including this clause (a)(xii)), other than through non-public communications with the Company that would not reasonably be expected to trigger public disclosure obligations for any of the Parties. The foregoing provisions of this Section 2(a) shall not be deemed to prevent any member of the Investor Group from (i) communicating privately with the Board or any of the Company’s executive officers regarding any matter, so long as such communications are not intended to, and would not reasonably be expected to, require the Company or any member of the Investor Group to make public disclosure with respect thereto, (ii) communicating privately with shareholders of the Company and are not made with an intent to otherwise violate this Section 2(a), Section 3 or any other provision of this Agreement, (iii) identifying potential director candidates to serve on the Board so long as such actions do not create a public disclosure obligation for the Investor Group or the Company, are not publicly disclosed by the Investor Group or its Affiliates and are undertaken on a basis reasonably designed to be confidential; (iv) making or sending private communications to investors in any member of the Investor Group or any of their Affiliates or prospective investors in any member of the Investor Group or any of their Affiliates, provided that such statements or communications (1) are based on publicly available information; and (2) are not reasonably expected to be publicly disclosed and are understood by all parties to be confidential communications; or (v) taking any action to the extent necessary to comply with any law, rule or regulation or any action required by any governmental or regulatory authority or stock exchange that has, or may have, jurisdiction over any member of the Investor Group. Furthermore, for the avoidance of doubt, nothing in this Agreement shall be deemed to restrict in any way the Investor Group Appointees (or any Replacement Appointee, as applicable) in the exercise of their fiduciary duties under applicable law as directors of the Company. b. In respect of any vote or consent of the Company’s shareholders during the Standstill Period (whether at an annual or special shareholder meeting or pursuant to an action by written consent of the shareholders) (each a “Shareholder Meeting”), the Investor Group and the members of the Investor Group shall appear or act in person or by proxy and vote all shares of Common Stock Beneficially Owned by them in accordance with the recommendation of the Board with respect to (i) the election, removal and/or replacement of directors (a “Director Proposal”), (ii) the ratification of the appointment of the Company’s independent registered public accounting firm and (iii) any other proposal submitted to the Company’s shareholders at a Shareholder Meeting, in each case as such recommendation of the Board is set forth in the applicable definitive proxy statement filed in respect thereof; provided, however, that in the event Institutional Shareholder Services Inc. (“ISS”) and Glass Lewis & Co., LLC (“Glass Lewis”) make a recommendation that differs from the recommendation of the Board with respect to any proposal submitted to the shareholders at any Shareholder Meeting (other than Director Proposals), the Investor Group and the members of the Investor Group are permitted to vote the shares of Common Stock Beneficially Owned by them at such Shareholder Meeting in accordance with the ISS and Glass Lewis recommendation; provided, further, that the Investor Group and the members of the Investor Group shall be entitled to vote the shares of Common Stock Beneficially Owned by them in their sole discretion with respect to (A) any publicly announced proposal relating to any transaction pursuant to which any person is or becomes a Beneficial Owner, directly or indirectly, of securities of the Company representing more than 50% of the Company’s then-outstanding equity interests and voting power, a merger, stock-for-stock transaction, spin-off, acquisition, disposition of all or substantially all of the assets of the Company and its subsidiaries or other business combination involving the Company, (B) any financing, recapitalization, restructuring, share issuance or similar extraordinary transaction or (C) the implementation of takeover defenses not in existence as of the date of this Agreement, in each case, that requires a vote of the Company’s shareholders.

Appears in 1 contract

Samples: Cooperation Agreement (Forward Air Corp)

Standstill and Voting. a. Each member of the Investor Group agrees that during the Standstill Period, the Investor Group and the Investor Group Affiliates will not (and they will not assist or encourage others to), directly or indirectly, in any manner, without prior written approval of the Board: : i. take any actions, including acquiring, seeking to acquire or agreeing to acquire (directly or indirectly, whether by market purchases, private purchases, tender or exchange offer, through the acquisition of control of another person, by joining a “group” (within the meaning of Section 13(d)(3) of the Exchange Act), through swap or hedging transactions or otherwise) any shares of Common Stock (or Beneficial Ownership thereof) or any securities convertible or exchangeable into or exercisable for any shares of Common Stock (or Beneficial Ownership thereof) (including any derivative securities or any other rights decoupled from the underlying securities of the Company) such that the ~~Ancora Investors~~ Investor Group would Beneficially Own in the aggregate in excess of ~~7.0~~4.99% of the ~~then-outstanding shares of Common Stock or the Pacific Point Investors would Beneficially Own in excess of 2.9% of the then-outstanding~~ then‑outstanding shares of Common Stock; ; ii. other than in open market sale transactions where the identity of the purchaser is not known, sell, offer, or agree to sell, directly or indirectly, through swap or hedging transactions or otherwise, the securities of the Company or any rights decoupled from the underlying securities held by the Investor Group to any person or entity not (A) a party to this Agreement, (B) a member of the Board, (C) an officer of the Company or (D) an Affiliate of the Investor Group (any person or entity not set forth in clauses (~~A)-(D~~A)‑(D) shall be referred to as a “Third Party”) that would result in such Third Party, together with its Affiliates, owning, controlling or otherwise having any, beneficial or other ownership interest representing in the aggregate in excess of 5.0% of the shares of Common Stock outstanding at such time; ; iii. (A) advise or knowingly encourage or influence any other Person or knowingly assist any third party in so encouraging, assisting or influencing any other 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 the Board’s recommendation in connection with such matter) or (B) advise, influence or encourage any Person with respect to, or effect or seek to effect, whether alone or in concert with others, the election, nomination or removal of a director other than as permitted by Section 1; ; iv. solicit proxies or written consents of ~~shareholders~~ stockholders or conduct any other type of referendum (binding or ~~non-binding~~non‑binding) (including any “withhold,” “vote no” or similar campaign) with respect to the shares of Common Stock, or from the holders of the shares of Common Stock, 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 knowingly encourage or assist any 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 Common Stock (other than any encouragement, advice or influence that is consistent with the Board’s recommendation in connection with such matter);; v. (A) form, join or in any other way participate in a “group” with respect to any shares of Common Stock (other than a “group” solely consisting of the Investor Group or Investor Group Affiliates), (B) grant any proxy, consent or other authority to vote with respect to any matters to be voted on by the Company’s ~~shareholders~~ stockholders (other than to the named proxies included in the Company’s proxy card for any ~~Shareholder~~ Stockholder Meeting (as defined below) or in accordance with Section 2(b)) or (C) agree to deposit or deposit any shares of Common Stock or any securities convertible or exchangeable into or exercisable for any such shares of Common Stock in any voting trust, agreement or similar arrangement (other than (I) to the named proxies included in the Company’s proxy card for any ~~Shareholder~~ Stockholder Meeting, (II) customary brokerage accounts, margin accounts, prime brokerage accounts and the like or (III) any agreement solely among the Investor Group or Investor Group Affiliates); ; vi. separately or in conjunction with any third party 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 or privately, with or without conditions), indicate an interest in or 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 the assets or businesses of the Company or any of its subsidiaries or actively encourage or initiate or support any other third party in any such activity; provided, however, that the Investor Group and Investor Group Affiliates shall be permitted to (A) sell or tender their shares of Common Stock, and otherwise receive consideration, pursuant to any such transaction and (B) vote on any such transaction in accordance with Section 2(b);; vii. (A) nominate, recommend for nomination or give notice of an intent to nominate or recommend for nomination a person for election at any Stockholder Meeting at which the Company’s directors are to be elected or (B)(I) present at any ~~Shareholder~~ Stockholder Meeting any proposal (pursuant to Rule 14a-8 or otherwise) for consideration for action by the ~~shareholders~~ stockholders or (BII) call or seek to call, or request the call of, alone or in concert with others, or support another ~~shareholder~~stockholder’s call for, any meeting of ~~shareholders~~stockholders, whether or not such a meeting is permitted by the Company’s organizational documents; ; viii. take any action in support of or make any proposal or request that constitutes: (A) controlling, changing or influencing the Board, management or policies of the Company, including any plans or proposals to change the number or term of directors or the removal of any directors, or to fill any vacancies on the Board; (B) any material change in the capitalization, stock repurchase programs and practices or dividend policy of the Company; (C) any other material change in the Company’s management, business or corporate structure; (D) seeking to have the Company waive or make amendments or modifications to the Company’s ~~charter~~ charter, the Company’s Bylaws or ~~bylaws~~any of the Company Policies (each as may be amended from time to time), or other actions that may impede or facilitate the acquisition of control of the Company by any person; (E) causing a class of securities of the Company to be delisted from, or to cease to be authorized to be quoted on, any securities exchange; or (F) causing a class of securities of the Company to become eligible for termination of registration pursuant to Section 12(g)(4) of the Exchange Act, in each case with respect to the foregoing clauses (A) through (F), except as set forth in Section 1; ; ix. make any request for ~~shareholder~~ stockholder list materials or other books and records of the Company under Section 220 of the Delaware General Corporation Law or otherwise; provided that if any ~~Investor Group Appointee~~ Director (or any Replacement ~~Appointee~~Director, as applicable) makes such a request solely in such ~~Investor Group Appointee~~Director’s capacity as a director of the Company in a manner consistent with his or her fiduciary duties to the Company, such material and other books and records may not be shared with any member of the Investor Group or any Investor Group Affiliate, notwithstanding any other provision of this Agreement; ; x. ~~except in the case of fraud by the Company,~~ institute, solicit, join (as a party) or knowingly assist any litigation, arbitration or other proceeding against the Company or any of its current or former directors or officers (including derivative actions), other than (A) litigation by the Investor Group to enforce the provisions of this Agreement, (B) counterclaims with respect to any proceeding initiated by, or on behalf of, the Company or its Affiliates against the Investor Group or any ~~Investor Group Appointee~~ Director (or any Replacement ~~Appointee~~Director, as applicable) and (C) the exercise of statutory appraisal rights; provided that the foregoing shall not prevent the Investor Group from responding to or complying with a validly issued legal process (and the Company agrees that this Section 2(a)(x) shall apply mutatis mutandis to the Company and its directors, officers, employees and agents (in each case, acting in such capacity) and Affiliates with respect to the Investor Group); ; xi. encourage, facilitate, support, participate in or enter into any negotiations, agreements, arrangements or understandings with respect to, the taking of any actions by any other Person in connection with the foregoing that is prohibited to be taken by the Investor Group (except as set forth in Section 1); or or xii. request that the Company, directly or indirectly, amend or waive any provision of this Section 2 (including this clause (a)(xii)), other than through ~~non-public~~ non‑public communications with the Company that would not reasonably be expected to trigger public disclosure obligations for any of the Parties. The foregoing provisions of this Section 2(a) shall not be deemed to prevent any member of the Investor Group from (i) communicating privately with the Board or any of the Company’s executive officers regarding any matter, so long as such communications are not intended to, and would not reasonably be expected to, require the Company or any member of the Investor Group to make public disclosure with respect thereto, (ii) communicating privately with shareholders of the Company and are not made with an intent to otherwise violate this Section 2(a), Section 3 or any other provision of this Agreement, (iii) identifying potential director candidates to serve on the Board so long as such actions do not create a public disclosure obligation for the Investor Group or the Company, are not publicly disclosed by the Investor Group or its Affiliates and are undertaken on a basis reasonably designed to be confidential; (iv) making or sending private communications to investors in any member of the Investor Group or any of their Affiliates or prospective investors in any member of the Investor Group or any of their Affiliates, provided that such statements or communications (1) are based on publicly available information; and (2) are not reasonably expected to be publicly disclosed and are understood by all parties to be confidential communications; or (v) taking any action to the extent necessary to comply with any law, rule or regulation or any action required by any governmental or regulatory authority or stock exchange that has, or may have, jurisdiction over any member of the Investor Group. Furthermore, for the avoidance of doubt, nothing in this Agreement shall be deemed to restrict in any way the Investor Group Appointees (or any Replacement Appointee, as applicable) in the exercise of their fiduciary duties under applicable law as directors of the Company. b. In respect of any vote or consent of the Company’s ~~shareholders~~ stockholders during the Standstill Period (whether at an annual or special ~~shareholder~~ stockholder meeting or pursuant to an action by written consent of the ~~shareholders~~stockholders) (each a “~~Shareholder~~ Stockholder Meeting”), the Investor Group and the members of the Investor Group shall appear or act in person or by proxy and vote all shares of Common Stock Beneficially Owned by them in accordance with the recommendation of the Board with respect to (i) the election, removal and/or replacement of directors (a “Director Proposal”), (ii) the ratification of the appointment of the Company’s independent registered public accounting firm and (iii) any other proposal submitted to the Company’s ~~shareholders~~ stockholders at a ~~Shareholder~~ Stockholder Meeting, in each case as such recommendation of the Board is set forth in the applicable definitive proxy statement filed in respect thereof; provided, however, that in the event Institutional Shareholder Services Inc. (“ISS”) and Glass Lewis & Co., LLC (“Glass Lewis”) make a recommendation that differs from the recommendation of the Board with respect to any proposal submitted to the ~~shareholders~~ stockholders at any ~~Shareholder~~ Stockholder Meeting (other than Director Proposals), the Investor Group and the members of the Investor Group are permitted to vote the shares of Common Stock Beneficially Owned by them at such ~~Shareholder~~ Stockholder Meeting in accordance with the ISS and Glass Lewis recommendation; provided, further, that the Investor Group and the members of the Investor Group shall be entitled to vote the shares of Common Stock Beneficially Owned by them in their sole discretion with respect to (A) any publicly announced proposal relating to any transaction pursuant to which any person is or becomes a Beneficial Owner, directly or indirectly, of securities of the Company representing more than 50% of the Company’s then-outstanding equity interests and voting power, a merger, stock-for-stock transaction, spin-off, acquisition, disposition of all or substantially all of the assets of the Company and its subsidiaries or other business combination involving the Company, (B) any financing, recapitalization, restructuring, share issuance or similar extraordinary transaction or (C) the implementation of takeover defenses not in existence as of the date of this Agreement, in each case, that requires a vote of the Company’s ~~shareholders~~stockholders. c. The “Standstill Period” shall begin as of the date of this Agreement and shall remain in full force and effect until the earlier of (i) the date that is thirty (30) days prior to the notice deadline for the submission of stockholder nominations for the 2025 annual meeting of stockholders pursuant to the Bylaws, and (ii) the date that is one hundred and ten (110) days prior to the first anniversary of the 2024 Annual Meeting; provided, however, that upon the public announcement by the Company of a definitive agreement for any transaction that would constitute or result in a Change of Control (as defined below) which has not been approved by each of the Directors in their capacity as members of the Board, this Agreement shall immediately and automatically terminate in its entirety, and no Party hereunder shall have any further rights or obligations under this Agreement. For purposes of this Agreement, a “Change of Control” shall be deemed to have taken place if (1) any person is or becomes a beneficial owner, directly or indirectly, of securities of the Company representing more than 50% of the equity interests and voting power of the Company’s then outstanding equity securities, (2) the Company effects a merger or a stock-for-stock transaction with a third party whereby immediately after the consummation of the transaction the Company’s stockholders retain less than 50% of the equity interests and voting power of the surviving entity’s then outstanding equity securities or (3) the Company sells all or substantially all of the Company’s assets to a third party. d. Each member of the Investor Group shall comply, and shall cause each of its respective Investor Group Affiliates to comply, with the terms of this Agreement and shall be responsible for any breach of this Agreement by any such Investor Group Affiliate.

Appears in 1 contract

Samples: Cooperation Agreement (Berry Global Group, Inc.)

Standstill and Voting. a. ~~Each member of the Investor Group agrees~~ The Ancora Parties each agree that during the Standstill ~~Period~~Period (as defined below), the ~~Investor Group~~ Ancora Parties and the ~~Investor Group~~ Ancora Affiliates will not (and they will not assist or encourage others to), directly or indirectly, in any manner, without prior written approval of the Board: i. take any actions, including acquiring, seeking to acquire or agreeing to acquire (directly or indirectly), whether by market purchases, private purchases, tender or exchange offer, through the acquisition of control of another person, by joining a “group” (within the meaning of Section 13(d)(3) of the Exchange Act), through swap or hedging transactions or otherwise) , any shares of Common Stock (or Beneficial Ownership thereof) or any securities convertible or exchangeable into or exercisable for any shares of Common Stock (or Beneficial Ownership thereof) (including any derivative securities or any other rights decoupled from the underlying securities of the ~~Company~~Corporation) such that the Ancora ~~Investors~~ Parties would Beneficially Own in excess of ~~7.0~~4.9% of the ~~then-outstanding~~ shares of Common Stock ~~or the Pacific Point Investors would Beneficially Own in excess of 2.9% of the then-~~outstanding ~~shares of Common Stock;~~at such time; ii. other than in open market sale transactions where the identity of the purchaser is not known, sell, offer, or agree to sell, directly or indirectly, through swap or hedging transactions or otherwise, the securities of the ~~Company~~ Corporation or any rights decoupled from the underlying securities held by the ~~Investor Group~~ Ancora Parties to any person or entity not (A) a party to this Agreement, (B) a member of the Board, (C) an officer of the ~~Company~~ Corporation or (D) an Affiliate of the ~~Investor Group~~ Ancora Parties (any person or entity not set forth in the foregoing clauses (A)-(D) shall be referred to as a “Third Party”) that would result in such Third Party, together with its Affiliates, owning, controlling or otherwise having ~~any,~~ any beneficial or other ownership interest representing in the aggregate in excess of ~~5.0~~3.0% of the shares of Common Stock outstanding at such ~~time;~~time; (A) advise or knowingly encourage or influence any other Person or knowingly assist any third party in so encouraging, assisting or influencing any other 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 the Board’s recommendation in connection with such matter) or (B) advise, influence or encourage any Person with respect to, or effect or seek to effect, whether alone or in concert with others, the election, nomination or removal of a ~~director other than as permitted by Section 1;~~director; iv. solicit proxies or written consents of shareholders or conduct any other type of referendum (binding or non-binding) (including any “withhold,” “vote no” or similar campaign) with respect to the shares of Common Stock, or from the holders of the shares of Common Stock, 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 knowingly encourage or assist any 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 Common Stock (other than any encouragement, advice or influence that is consistent with the Board’s recommendation in connection with such ~~matter);~~matter); (A) form, join or in any other way participate in a “group” with respect to any ~~shares of Common Stock~~ securities (other than a “group” solely consisting of the ~~Investor Group~~ Ancora Parties or ~~Investor Group~~ Ancora controlled Affiliates), (B) grant any proxy, consent or other authority to vote with respect to any matters to be voted on by the ~~Company~~Corporation’s shareholders at any annual or special shareholder meeting or pursuant to an action by written consent of the shareholders (each, a “Shareholder Meeting”), other than to the named proxies included in the ~~Company~~Corporation’s proxy card for any Shareholder Meeting ~~(as defined below)~~ or in accordance with Section 2(b)) or (C) agree to deposit or deposit any ~~shares of Common Stock~~ securities or any securities convertible or exchangeable into or exercisable for any such ~~shares of Common Stock~~ securities in any voting trust, agreement or similar arrangement (other than (I) to the named proxies included in the ~~Company~~Corporation’s proxy card for any Shareholder Meeting, (II) customary brokerage accounts, margin accounts, prime brokerage accounts and the like or (III) any agreement solely among the ~~Investor Group~~ Ancora Parties or ~~Investor Group Affiliates);~~Ancora’s controlled Affiliates); vi. separately or in conjunction with any third party 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 or privately, with or without conditions), indicate an interest in or effect any tender offer or exchange offer, merger, acquisition, division, reorganization, restructuring, recapitalization or other business combination involving the ~~Company~~ Corporation or any of its subsidiaries or the assets or businesses of the ~~Company~~ Corporation or any of its subsidiaries or actively encourage or initiate or support any other third party in any such ~~activity;~~ activity; provided, however, that the ~~Investor Group~~ Ancora Parties and ~~Investor Group~~ Ancora Affiliates shall be permitted to (A) sell or tender their ~~shares~~ securities subject to applicable rules of ~~Common Stock~~the SEC and the NYSE, and otherwise receive consideration, pursuant to any such transaction and (B) vote on any such transaction in accordance with Section ~~2(b);~~2(b); (A) nominate, recommend for nomination, or give notice of an intent to nominate or recommend for nomination a person for election at any Shareholder Meeting at which the Corporation’s directors are to be elected, (B) present at any Shareholder Meeting any proposal for consideration for action by the ~~shareholders~~ shareholders, or (BC) call or seek to call, or request the call of, alone or in concert with others, or support another shareholder’s call for, any meeting of shareholders, whether or not such a meeting is permitted by the ~~Company~~Corporation’s organizational ~~documents;~~documents; viii. take any action in support of or make any proposal or request that constitutes: (A) controlling, changing or influencing the Board, management or policies of the ~~Company~~Corporation, including any plans or proposals to change the number or term of directors or the removal of any directors, or to fill any vacancies on the ~~Board;~~ Board; (B) any material change in the capitalization, stock repurchase programs and practices or dividend policy of the ~~Company;~~ Corporation; (C) any other material change in the ~~Company~~Corporation’s management, business or corporate ~~structure;~~ structure; (D) seeking to have the ~~Company~~ Corporation waive or make amendments or modifications to the ~~Company~~Corporation’s charter or ~~bylaws,~~ bylaws or take other actions that may impede or facilitate the acquisition of control of the ~~Company~~ Corporation by any ~~person;~~ Person; (E) causing a class of securities of the ~~Company~~ Corporation to be delisted from, or to cease to be authorized to be quoted on, any securities ~~exchange;~~ exchange; or (F) causing a class of securities of the ~~Company~~ Corporation to become eligible for termination of registration pursuant to Section 12(g)(4) of the Exchange Act, in each case with respect to the foregoing clauses (A) through (~~F), except as set forth in Section 1;~~F); ix. make any request for shareholder list materials or other books and records of the ~~Company under Section 220 of the Delaware General~~ Corporation ~~Law~~ pursuant to VSCA §13.1-771, or ~~otherwise;~~ otherwise; provided that if ~~any Investor Group Appointee~~ the New Independent Director (or any Replacement ~~Appointee~~Director, as applicable) makes such a request solely in such ~~Investor Group Appointee~~New Independent Director’s (or any Replacement Director’s, as applicable) capacity as a director in a manner consistent with his or her fiduciary duties to the ~~Company~~Corporation, such material and other books and records may not be shared with any ~~member~~ Ancora Party, Member of the ~~Investor Group~~ Ancora Parties or any ~~Investor Group~~ Ancora Affiliate, notwithstanding any other provision of this ~~Agreement;~~Agreement; x. ~~except in the case of fraud by the Company,~~ institute, solicit, join (as a party) or knowingly assist any litigation, arbitration or other proceeding against the ~~Company~~ Corporation or any of its current or former directors or officers (including derivative actions)~~, other than~~ ; provided that the foregoing shall not prevent the Ancora Parties from (A) bringing litigation by the ~~Investor Group~~ Ancora Parties to enforce the provisions of this Agreement, (B) making counterclaims with respect to any proceeding initiated by, or on behalf of, the ~~Company~~ Corporation or its Affiliates against the ~~Investor Group~~ Ancora Parties or the New Independent Director (or any ~~Investor Group Appointee (or~~ Replacement ~~Appointee~~Director, as applicable~~) and~~ ), (C) ~~the exercise of~~ exercising statutory appraisal ~~rights; provided~~ rights or (D) receiving damages or settlement proceeds like any other shareholder in connection with any class action proceeding brought by a named plaintiff other than any Member of the Ancora Parties; provided, further, that the foregoing shall not prevent the ~~Investor Group~~ Ancora Parties from responding to or complying with a validly issued legal process (and the ~~Company~~ Corporation agrees that this Section 2(a)(x) shall apply mutatis mutandis to the ~~Company~~ Corporation and its directors, officers, employees and agents (in each case, acting in such capacity) and Affiliates with respect to the ~~Investor Group);~~Ancora Parties); xi. encourage, facilitate, support, participate in or enter into any negotiations, agreements, arrangements or understandings with respect ~~to,~~ to the taking of any actions by any other Person in connection with the foregoing that is prohibited to be taken by the ~~Investor Group (except as set forth in Section 1);~~ Ancora Parties; or xii. request that the ~~Company~~Corporation, directly or indirectly, amend or waive any provision of this Section 2 (including this clause (a)(xii)), other than through non-public communications with the ~~Company~~ Corporation that would not reasonably be expected to trigger public disclosure obligations for any ~~of the Parties~~Party. The foregoing provisions of this Section 2(a) shall not be deemed to prevent any ~~member~~ Member of the ~~Investor Group~~ Ancora Parties from (i) communicating privately with the Board or any of the ~~Company~~Corporation’s executive officers regarding any matter, so long as such communications are not intended to, and would not reasonably be expected to, require the ~~Company~~ Corporation or any ~~member~~ Member of the ~~Investor Group~~ Ancora Parties to make public disclosure with respect ~~thereto,~~ thereto; (ii) communicating privately with shareholders of the ~~Company~~ Corporation and ~~are~~ others in a manner that does not ~~made with an intent to~~ otherwise violate this Section 2(a), Section 3 hereof or any other provision of this ~~Agreement,~~ Agreement; (iii) only during the period thirty (30) days prior to the termination of the Standstill Period, identifying potential director candidates to serve on the ~~Board~~ Board, so long as such actions do not create a public disclosure obligation for the ~~Investor Group~~ Ancora Parties or the ~~Company~~Corporation, are not publicly disclosed by the ~~Investor Group~~ Ancora Parties or its Affiliates and are undertaken on a basis reasonably designed to be ~~confidential;~~ confidential; (iv) making or sending private communications to investors in any ~~member~~ Member of the ~~Investor Group or any of their Affiliates or prospective investors in any member of the Investor Group~~ Ancora Parties or any of their Affiliates, provided that such statements or communications (1) are based on publicly available information~~; and~~ , (2) are not reasonably expected to be publicly disclosed and are understood by all parties to be confidential communications; , and (3) pertain to the investor’s investment in the Ancora Parties or any of their Affiliates; or (v) taking any action to the extent necessary to comply with any law, rule or regulation or any action required by any governmental or regulatory authority or stock exchange that has, or may have, jurisdiction over any ~~member~~ Member of the ~~Investor Group~~Ancora Parties. Furthermore, for the avoidance of doubt, nothing in this Agreement shall be deemed to restrict in any way the ~~Investor Group Appointees~~ New Independent Director (or any Replacement ~~Appointee~~Director, as applicable) in the exercise of ~~their~~ his or her fiduciary duties under applicable law as ~~directors~~ a director of the ~~Company~~Corporation. b. In respect of any vote or consent of the ~~Company~~Corporation’s shareholders during the Standstill Period (whether at an annual or special ~~shareholder meeting~~ Shareholder Meeting or pursuant to an action by written consent of the shareholders~~) (each a “Shareholder Meeting”~~), the ~~Investor Group~~ Ancora Parties and the ~~members~~ Members of the ~~Investor Group~~ Ancora Parties shall appear or act in person or by proxy and vote or cause to be voted all shares of Common Stock Beneficially Owned by them in accordance with the recommendation of the Board with respect to (i) the election, removal and/or replacement of ~~directors (a “Director Proposal”)~~directors, (ii) the ratification of the appointment of the ~~Company~~Corporation’s independent registered public accounting firm and (iii) any other ~~proposal~~ proposal, including “say-on-pay,” submitted to the ~~Company~~Corporation’s shareholders at a Shareholder Meeting, other than any proposal to amend the Corporation’s Articles of Incorporation or Bylaws, in each case as such recommendation of the Board is set forth in the applicable definitive proxy statement filed in respect thereof; provided, however, that in the ~~event Institutional Shareholder Services Inc. (“ISS”)~~ Ancora Parties and ~~Glass Lewis & Co., LLC (“Glass Lewis”) make a recommendation that differs from~~ the ~~recommendation~~ Members of the Board with respect to any proposal submitted to the shareholders at any Shareholder Meeting (other than Director Proposals), the Investor Group and the members of the Investor Group are permitted to vote the shares of Common Stock Beneficially Owned by them at such Shareholder Meeting in accordance with the ISS and Glass Lewis recommendation; provided, further, that the Investor Group and the members of the Investor Group Ancora Parties shall be entitled to vote the shares of Common Stock Beneficially Owned by them in their sole discretion with respect to (A) any publicly announced proposal relating to any transaction pursuant to which any person is or becomes a Beneficial Owner, directly or indirectly, of securities of the ~~Company~~ Corporation representing more than 50% of the ~~Company~~Corporation’s ~~then-~~then outstanding equity ~~interests~~ interest and voting power, a merger, ~~stock-for-~~stock for stock transaction~~, spin-off~~, acquisition, disposition of all or substantially all of the assets of the ~~Company~~ Corporation and its subsidiaries or other business combination involving the ~~Company,~~ Corporation or (B) any financing, recapitalization, restructuring, share issuance or similar extraordinary ~~transaction or (C) the implementation of takeover defenses not in existence as of the date of this Agreement~~transaction, in each case, that requires a vote of the ~~Company~~Corporation’s shareholders.

Appears in 1 contract

Samples: Cooperation Agreement (Norfolk Southern Corp)

Standstill and Voting. a. Each ~~member~~ of the ~~Investor Group~~ Ancora Investors agrees that during the Standstill Period, the ~~Investor Group~~ Ancora Investors and the Ancora Investor ~~Group~~ Affiliates will not (and they will not assist or encourage others to), directly or indirectly, in any manner, without prior written approval of the Board: i. take any actions, including acquiring, seeking to acquire or agreeing to acquire (directly or indirectly, whether by market purchases, private purchases, tender or exchange offer, through the acquisition of control of another person, by joining a “group” (within the meaning of Section 13(d)(3) of the Exchange Act), through swap or hedging transactions or otherwise) any shares of Common Stock (or Beneficial Ownership thereof) or any securities convertible or exchangeable into or exercisable for any shares of Common Stock (or Beneficial Ownership thereof) (including any derivative securities or any other rights decoupled from the underlying securities of the Company) such that the Ancora Investors would Beneficially Own in ~~excess of 7.0% of~~ the ~~then-outstanding shares of Common Stock or the Pacific Point Investors would Beneficially Own~~ aggregate in excess of ~~2.9~~4.99% of the then-outstanding shares of Common Stock; ii. other than in open market sale transactions where the identity of the purchaser is not known, sell, offer, or agree to sell, directly or indirectly, through swap or hedging transactions or otherwise, the securities of the Company or any rights decoupled from the underlying securities held by the ~~Investor Group~~ Ancora Investors to any person or entity not (A) a party to this Agreement, (B) a member of the Board, (C) an officer of the Company or (D) an Affiliate of the ~~Investor Group~~ Ancora Investors (any person or entity not set forth in clauses (A)-(D) shall be referred to as a “Third Party”) that would result in such Third Party, together with its Affiliates, owning, controlling or otherwise having any, beneficial or other ownership interest representing in the aggregate in excess of ~~5.0~~4.99% of the shares of Common Stock outstanding at such time; (A) advise or knowingly encourage or influence any other Person or knowingly assist any third party in so encouraging, assisting or influencing any other 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 the Board’s recommendation in connection with such matter) or (B) advise, influence or encourage any Person with respect to, or effect or seek to effect, whether alone or in concert with others, the election, nomination or removal of a director other than as permitted by Section 1; iv. solicit proxies or written consents of ~~shareholders~~ stockholders or conduct any other type of referendum (binding or non-binding) (including any “withhold,” “vote no” or similar campaign) with respect to the shares of Common Stock, or from the holders of the shares of Common Stock, 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 knowingly encourage or assist any 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 Common Stock (other than any encouragement, advice or influence that is consistent with the Board’s recommendation in connection with such matter); (A) form, join or in any other way participate in a “group” with respect to any shares of Common Stock (other than a “group” solely consisting of the Ancora Investors or Ancora Investor ~~Group or Investor Group~~ Affiliates), (B) grant any proxy, consent or other authority to vote with respect to any matters to be voted on by the Company’s ~~shareholders~~ stockholders (other than to the named proxies included in the Company’s proxy card for any ~~Shareholder~~ Stockholder Meeting (as defined below) or in accordance with Section 2(b)) or (C) agree to deposit or deposit any shares of Common Stock or any securities convertible or exchangeable into or exercisable for any such shares of Common Stock in any voting trust, agreement or similar arrangement (other than (I) to the named proxies included in the Company’s proxy card for any ~~Shareholder~~ Stockholder Meeting, (II) customary brokerage accounts, margin accounts, prime brokerage accounts and the like or (III) any agreement solely among the Ancora Investors or Ancora Investor ~~Group or Investor Group~~ Affiliates); vi. separately or in conjunction with any third party 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 or privately, with or without conditions), indicate an interest in or 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 the assets or businesses of the Company or any of its subsidiaries or actively encourage or initiate or support any other third party in any such activity; provided, however, that the Ancora Investors and Ancora Investor ~~Group and Investor Group~~ Affiliates shall be permitted to (A) sell or tender their shares of Common Stock, and otherwise receive consideration, pursuant to any such ~~transaction~~ transaction, including the Mergers, and (B) vote on any such ~~transaction~~ transaction, including the Mergers, in accordance with Section 2(b); (A) nominate, recommend for nomination or give notice of an intent to nominate or recommend for nomination a person for election at any Stockholder Meeting at which the Company’s directors are to be elected or (B)(I) present at any ~~Shareholder~~ Stockholder Meeting any proposal (pursuant to Rule 14a-8 or otherwise) for consideration for action by the ~~shareholders~~ stockholders or (BII) call or seek to call, or request the call of, alone or in concert with others, or support another ~~shareholder~~stockholder’s call for, any meeting of ~~shareholders~~stockholders, whether or not such a meeting is permitted by the Company’s organizational documents; viii. take any action in support of or make any proposal or request that constitutes: (A) controlling, changing or influencing the Board, management or policies of the Company, including any plans or proposals to change the number or term of directors or the removal of any directors, or to fill any vacancies on the Board; (B) any material change in the capitalization, stock repurchase programs and practices or dividend policy of the Company; (C) any other material change in the Company’s management, business or corporate structure; (D) seeking to have the Company waive or make amendments or modifications to the Company’s ~~charter~~ charter, the Company’s Amended and Restated Bylaws (the “Bylaws”) or ~~bylaws~~any of the Company Policies (each as may be amended from time to time), or other actions that may impede or facilitate the acquisition of control of the Company by any person; (E) causing a class of securities of the Company to be delisted from, or to cease to be authorized to be quoted on, any securities exchange; or (F) causing a class of securities of the Company to become eligible for termination of registration pursuant to Section 12(g)(4) of the Exchange Act, in each case with respect to the foregoing clauses (A) through (F), except as set forth in Section 1; ix. make any request for ~~shareholder~~ stockholder list materials or other books and records of the Company under Section 220 of the Delaware General Corporation Law or otherwise; provided that if any ~~Investor Group Appointee~~ New Director (or any Replacement ~~Appointee~~New Director, as applicable) makes such a request solely in such ~~Investor Group Appointee~~New Director’s capacity as a director of the Company in a manner consistent with his or her fiduciary duties to the Company, such material and other books and records may not be shared with any member of the ~~Investor Group~~ Ancora Investors or any Ancora Investor ~~Group~~ Affiliate, notwithstanding any other provision of this Agreement; x. ~~except in the case of fraud by the Company,~~ institute, solicit, join (as a party) or knowingly assist any litigation, arbitration or other proceeding against the Company or any of its current or former directors or officers (including derivative actions), other than (A) litigation by the ~~Investor Group~~ Ancora Investors to enforce the provisions of this Agreement, (B) counterclaims with respect to any proceeding initiated by, or on behalf of, the Company or its Affiliates against the ~~Investor Group~~ Ancora Investors or any ~~Investor Group Appointee~~ New Director (or any Replacement ~~Appointee~~New Director, as applicable) and (C) the exercise of statutory appraisal rights; provided that the foregoing shall not prevent the ~~Investor Group~~ Ancora Investors from responding to or complying with a validly issued legal process (and the Company agrees that this Section 2(a)(x) shall apply mutatis mutandis to the Company and its directors, officers, employees and agents (in each case, acting in such capacity) and Affiliates with respect to the ~~Investor Group~~Ancora Investors); xi. encourage, facilitate, support, participate in or enter into any negotiations, agreements, arrangements or understandings with respect to, the taking of any actions by any other Person in connection with the foregoing that is prohibited to be taken by the ~~Investor Group~~ Ancora Investors (except as set forth in Section 1); or xii. request that the Company, directly or indirectly, amend or waive any provision of this Section 2 (including this clause (a)(xii)), other than through non-public communications with the Company that would not reasonably be expected to trigger public disclosure obligations for any of the Parties. The foregoing provisions of this Section 2(a) shall not be deemed to prevent any member of the ~~Investor Group~~ Ancora Investors from (i) communicating privately with the Board or any of the Company’s executive officers regarding any matter, so long as such communications are not intended to, and would not reasonably be expected to, require the Company or any ~~member of the~~ Ancora Investor ~~Group~~ to make public disclosure with respect thereto, (ii) communicating privately with ~~shareholders~~ stockholders of the Company and which communications are not made with an intent to otherwise violate this Section 2(a), Section 3 or any other provision of this Agreement, (iii) identifying potential director candidates to serve on the Board so long as such actions do not create a public disclosure obligation for the ~~Investor Group~~ Ancora Investors or the Company, are not publicly disclosed by the ~~Investor Group~~ Ancora Investors or its Affiliates and are undertaken on a basis reasonably designed to be confidential; (iv) making or sending private communications to investors in any member of the ~~Investor Group~~ Ancora Investors or any of their Affiliates or prospective investors in any member of the ~~Investor Group~~ Ancora Investors or any of their Affiliates, provided that such statements or communications (1) are based on publicly available information; and (2) are not reasonably expected to be publicly disclosed and are understood by all parties to be confidential communications; or (v) taking any action to the extent necessary to comply with any law, rule or regulation or any action required by any governmental or regulatory authority or stock exchange that has, or may have, jurisdiction over any ~~member~~ of the ~~Investor Group~~Ancora Investors. Furthermore, for the avoidance of doubt, nothing in this Agreement shall be deemed to restrict in any way the ~~Investor Group Appointees~~ New Director Candidates (or any Replacement ~~Appointee~~New Director, as applicable) in the exercise of their fiduciary duties under applicable law as ~~directors~~ a director of the Company. b. In respect of any vote or consent of the Company’s ~~shareholders~~ stockholders during the Standstill Period (whether at an annual or special ~~shareholder~~ stockholder meeting (including the Company Stockholders Meeting)) or pursuant to an action by written consent of the ~~shareholders~~stockholders) (each a “~~Shareholder~~ Stockholder Meeting”), ~~the Investor Group and the members~~ each of the ~~Investor Group~~ Ancora Investors shall appear or act in person or by proxy and vote all shares of Common Stock Beneficially Owned by them in accordance with the recommendation of the Board with respect to (i) the election, removal and/or replacement of directors (a “Director Proposal”), (ii) the ratification of the appointment of the Company’s independent registered public accounting firm and (iii) any other proposal submitted to the Company’s ~~shareholders~~ stockholders at a ~~Shareholder~~ Stockholder Meeting, in each case as such recommendation of the Board is set forth in the applicable definitive proxy statement filed in respect thereof; provided, however, ~~that~~ that, in the event that each of Institutional Shareholder Services Inc. (“ISS”) and Glass Lewis & Co., LLC (“Glass Lewis”) make a recommendation that differs from the recommendation of the Board with respect to any proposal submitted to the ~~shareholders~~ stockholders at any ~~Shareholder~~ Stockholder Meeting (other than Director ~~Proposals~~Proposals or any proposal submitted to the stockholders at the Company Stockholders Meeting (which shall be subject to the immediately following sentence)), the ~~Investor Group and the members of the Investor Group~~ Ancora Investors are permitted to vote the shares of Common Stock Beneficially Owned by them at such ~~Shareholder~~ Stockholder Meeting in accordance with the ISS and Glass Lewis recommendation; provided, further, ~~that~~ that, except as provided in the ~~Investor Group and~~ immediately following sentence, the ~~members of the Investor Group~~ Ancora Investors shall be entitled to vote the shares of Common Stock Beneficially Owned by them in their sole discretion with respect to (A) any publicly announced proposal relating to any transaction pursuant to which any person is or becomes a Beneficial Owner, directly or indirectly, of securities of the Company representing more than 50% of the Company’s then-outstanding equity interests and voting power, a merger, stock-for-stock transaction, spin-off, acquisition, disposition of all or substantially all of the assets of the Company and its subsidiaries or other business combination involving the Company, (B) any financing, recapitalization, restructuring, share issuance or similar extraordinary transaction or (C) the implementation of takeover defenses not in existence as of the date of this Agreement, in each case, that requires a vote of the Company’s ~~shareholders~~stockholders. In furtherance of the foregoing and notwithstanding anything to the contrary therein, the Ancora Investors hereby irrevocably commit to appear or act in person or by proxy and vote all shares of Common Stock Beneficially Owned by them in accordance with the recommendation of the Board with respect to all proposals submitted to the Company Stockholders at the Company Stockholders Meeting, including (a) any proposal to adopt the Merger Agreement and thereby approve the transactions contemplated by the Merger Agreement, including the Mergers (the “Merger Proposal”), (b) any proposal to approve, on a nonbinding advisory basis, the compensation that may be paid or become payable to named executive officers of the Company that is based on or otherwise relates to the transactions contemplated by the Merger Agreement (the “Compensation Proposal”), and (c) any proposal to approve the adjournment of the Company Stockholders Meeting, if necessary or appropriate, to solicit additional proxies if there are insufficient votes at the time of the Company Stockholders Meeting to approve the Merger Proposal; provided that, solely with respect to the Compensation Proposal, in the event that each of ISS and Xxxxx Xxxxx makes a recommendation that differs from the recommendation of the Board with respect to the Compensation Proposal, the Ancora Investors shall be permitted to vote the shares of Common Stock Beneficially Owned by them at the Company Stockholders Meeting in accordance with the ISS and Glass Lewis recommendation with respect to the Compensation Proposal.

Appears in 1 contract

Samples: Cooperation Agreement (IAA, Inc.)

Standstill and Voting. a. (a) Each ~~member of the~~ Ancora Investor ~~Group~~ agrees that during the Standstill Period, the ~~Investor Group and the Investor Group Affiliates~~ Ancora Investors will not (and they will not assist or encourage others to)) not to, directly or indirectly, in any manner, without prior written approval of the Board: i. (i) take any actions, including acquiring, seeking to acquire or agreeing to acquire (directly or indirectly, whether by market purchases, private purchases, tender or exchange offer, through the acquisition of control of another person, by joining a “group” (within the meaning of Section 13(d)(3) of the Exchange Act), through swap or hedging transactions or otherwise) (A) ownership (Beneficial or otherwise) of any shares of Common Stock ~~(or Beneficial Ownership thereof)~~ or any securities convertible or exchangeable into or exercisable for any shares of Common Stock ~~(or Beneficial Ownership thereof)~~ (including any derivative securities or any other rights decoupled from the underlying securities of the Company) such that the Ancora Investors ~~would Beneficially Own~~ hold, directly or indirectly, in excess of ~~7.0~~5.0% of the then-outstanding shares of Common Stock (the “Maximum Ownership Cap”); or ~~the Pacific Point Investors would Beneficially Own~~ (B) any interest in ~~excess of 2.9%~~ any indebtedness of the ~~then-outstanding shares of Common Stock~~Company; (ii. ) other than in open market sale transactions where the identity of the purchaser is not known, sell, offer, or agree to sell, directly or indirectly, through swap or hedging transactions or otherwise, the securities of the Company or any rights decoupled from the underlying securities held by the ~~Investor Group~~ Ancora Investors to any person or entity not (A) a party to this Agreement, (B) a member of the Board, (C) an officer of the Company or (D) an Affiliate of the ~~Investor Group~~ Ancora Investors (any person or entity not set forth in clauses (A)-(D) shall be referred to as a “Third Party”) that would result in such Third Party, together with its Affiliates, owning, controlling or otherwise having any, beneficial or other ownership interest representing in the aggregate in excess of 5.0% of the shares of Common Stock outstanding at such time; (iii) (A) advise or knowingly encourage or influence any other Person or knowingly assist any third party in so encouraging, assisting or influencing any other 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 the Board’s recommendation in connection with such matter) or (B) advise, influence or encourage any Person with respect to, or effect or seek to effect, whether alone or in concert with others, the election, nomination or removal of a director other than as permitted by Section 1; (iv. ) solicit proxies or written consents of ~~shareholders~~ stockholders or conduct any other type of referendum (binding or non-binding) (including any “withhold,” “vote no” or similar campaign) with respect to the shares of Common Stock, or from the holders of the shares of Common Stock, 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 knowingly encourage or assist any 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 Common Stock (other than any encouragement, advice or influence that is consistent with the Board’s recommendation in connection with such matter); (v) (A) form, join or in any other way participate in a any partnership, limited partnership, syndicate or “group” with respect to any shares of Common Stock (other than a “group” solely consisting of the Ancora Investors; provided, however, that an Affiliate of an Ancora Investor ~~Group or Investor Group Affiliates~~will only be permitted to join the “group” following the execution of this Agreement, so long as (x) any such Affiliate agrees to be bound by the terms and conditions of this Agreement and (y) such joining would not result in the Ancora Investors’ “group” Beneficially Owning in the aggregate in excess of the Maximum Ownership Cap), (B) grant any proxy, consent or other authority to vote with respect to any matters to be voted on by the Company’s ~~shareholders~~ stockholders (other than to the named proxies included in the Company’s proxy card for any ~~Shareholder~~ Stockholder Meeting (as defined below) or in accordance with Section 2(b)) or (C) agree to deposit or deposit any shares of Common Stock or any securities convertible or exchangeable into or exercisable for any such shares of Common Stock in any voting trust, agreement or similar arrangement (other than (I) to the named proxies included in the Company’s proxy card for any ~~Shareholder~~ Stockholder Meeting, (II) customary brokerage accounts, margin accounts, prime brokerage accounts and the like or (III) any agreement solely among the ~~Investor Group or Investor Group Affiliates~~Ancora Investors); (vi. ) separately or in conjunction with any third party 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 or privately, with or without conditions), indicate an interest in or ~~effect~~ 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 the assets or businesses of the Company or any of its subsidiaries or actively encourage or initiate or support any other third party in any such activity; provided, however, that the ~~Investor Group and Investor Group Affiliates~~ Ancora Investors shall be permitted to (A) sell or tender their shares of Common Stock, and otherwise receive consideration, pursuant to any such transaction and (B) vote on any such transaction in accordance with Section 2(b); (vii) (I) nominate, recommend for nomination or give notice of an intent to nominate or recommend for nomination a person for election at any Stockholder Meeting at which the Company’s directors are to be elected or (II) (A) present at any ~~Shareholder~~ Stockholder Meeting any proposal (pursuant to Rule 14a-8 or otherwise) for consideration for action by the ~~shareholders~~ stockholders or (B) call or seek to call, or request the call of, alone or in concert with others, or support another ~~shareholder~~stockholder’s call for, any meeting of ~~shareholders~~stockholders, whether or not such a meeting is permitted by the Company’s organizational documents; (viii. ) take any action in support of or make any proposal or request that constitutes: (A) controlling, changing or influencing the Board, management or policies of the Company, including any plans or proposals to change the number or term of directors or the removal of any directors, or to fill any vacancies on the Board; (B) any material change in the capitalization, stock repurchase programs and practices or dividend policy of the Company; (C) any other material change in the Company’s management, business or corporate structure; (D) seeking to have the Company waive or make amendments or modifications to the Company’s charter or ~~bylaws~~Bylaws or any of the Company Policies (each as may be amended from time to time), or other actions that may impede or facilitate the acquisition of control of the Company by any person; (E) causing a class of securities of the Company to be delisted from, or to cease to be authorized to be quoted on, any securities exchange; or (F) causing a class of securities of the Company to become eligible for termination of registration pursuant to Section 12(g)(4) of the Exchange Act, in each case with respect to the foregoing clauses (A) through (F), except as set forth in Section 1; (ix. ) make any request for ~~shareholder~~ stockholder list materials or other books and records of the Company under Section 220 of the Delaware General Corporation Law or otherwise; provided that if any ~~Investor Group~~ Ancora Appointee (or any ~~Replacement Appointee~~Replacement, as applicable) makes such a request solely in such ~~Investor Group~~ Ancora Appointee’s capacity as a director of the Company in a manner consistent with his or her fiduciary duties to the Company, such material and other books and records may not be shared with any member of the ~~Investor Group or any Investor Group Affiliate~~Ancora Investors, notwithstanding any other provision of this Agreement; x. (x) except in the case of fraud by the Company, institute, solicit, join (as a party) or knowingly assist any litigation, arbitration or other proceeding against the Company or any of its current or former directors or officers (including derivative actions), other than (A) litigation by the ~~Investor Group~~ Ancora Investors to enforce the provisions of this Agreement, (B) counterclaims with respect to any proceeding initiated by, or on behalf of, the Company or its Affiliates against the ~~Investor Group~~ Ancora Investors or any ~~Investor Group~~ Ancora Appointee (or ~~Replacement Appointee~~any Replacement, as applicable) and (C) the exercise of statutory appraisal rights; provided that the foregoing shall not prevent the ~~Investor Group~~ Ancora Investors from responding to or complying with a validly issued legal process (and the Company agrees that this Section 2(a)(x) shall apply mutatis mutandis to the Company and its directors, officers, employees and agents (in each case, acting in such capacity) and Affiliates with respect to the ~~Investor Group~~Ancora Investors); (xi. ) encourage, facilitate, support, participate in or enter into any negotiations, agreements, arrangements or understandings with respect ~~to,~~ to the taking of any actions by any other Person in connection with the foregoing that is prohibited to be taken by the ~~Investor Group~~ Ancora Investors (except as set forth in Section 1)~~; or~~; (xii. ) request that the Company, directly or indirectly, amend or waive any provision of this Section 2 (~~including~~ included this clause (a)(xii)), other than through non-public communications with the Company that would not reasonably be expected to trigger public disclosure obligations for any of the Parties. The foregoing provisions of this Section 2(a) shall not be deemed to prevent any member of the ~~Investor Group~~ Ancora Investors from (i) communicating privately with the Board or any of the Company’s executive officers regarding any matter, so long as such communications are not intended to, and would not reasonably be expected to, require the Company or any ~~member of the~~ Ancora Investor ~~Group~~ to make public disclosure with respect thereto, (ii) communicating privately with ~~shareholders~~ stockholders of the Company and are not made with an intent to otherwise violate this Section 2(a), Section 3 or any other provision of this Agreement, (iii) identifying potential director candidates to serve on the Board so long as such actions do not create a public disclosure obligation for the ~~Investor Group~~ Ancora Investors or the Company, are not publicly disclosed by the ~~Investor Group or its Affiliates~~ Ancora Investors and are undertaken on a basis reasonably designed to be confidential; or (iv) making or sending private communications to investors in any member of the ~~Investor Group or any of their Affiliates~~ Ancora Investors or prospective investors in any member of the ~~Investor Group or any of their Affiliates~~Ancora Investors, provided that such statements or communications (1) are based on publicly available information; and (2) are not reasonably expected to be publicly disclosed and are understood by all parties to be confidential communications; or (v) taking any action to the extent necessary to comply with any law, rule or regulation or any action required by any governmental or regulatory authority or stock exchange that has, or may have, jurisdiction over any member of the Investor Group. Furthermore, for the avoidance of doubt, nothing in this Agreement shall be deemed to restrict in any way the ~~Investor Group~~ Ancora Appointees (or any ~~Replacement Appointee~~Replacement, as applicable) in the exercise of their fiduciary duties under applicable law as directors of the Company. b. (b) In respect of any vote or consent of the Company’s ~~shareholders~~ stockholders during the Standstill Period (whether at an annual or special ~~shareholder~~ stockholder meeting or pursuant to an action by written consent of the ~~shareholders~~stockholders) (each a “~~Shareholder~~ Stockholder Meeting”), ~~the Investor Group and the members~~ each of the Ancora Investors shall (i) appear at each such Stockholder Meeting or otherwise cause all Common Stock Beneficially Owned by each Ancora Investor ~~Group shall appear~~ and their respective Affiliates to be counted as present for purposes of establishing a quorum and (ii) vote, or ~~act in person or by proxy and vote~~ cause to be voted, all shares of Common Stock Beneficially Owned by ~~them~~ each Ancora Investor and their respective Affiliates using the Company’s proxy card or voting instruction form (and shall not execute any proxy card or voting instruction form in respect of a Stockholder Meeting other than the proxy card and voting instruction form being solicited by or on behalf of the Board) in accordance with the recommendation of the Board with respect to (ix) the election, removal and/or replacement of directors (a “Director Proposal”), (iiy) the ratification of the appointment of the Company’s independent registered public accounting firm and (~~iii~~z) any other proposal submitted to the Company’s ~~shareholders~~ stockholders at a ~~Shareholder~~ Stockholder Meeting, in each case as such recommendation of the Board is set forth in the applicable definitive proxy statement filed in respect thereof; provided, however, that in the event Institutional Shareholder Services Inc. (“ISS”) and Glass Lewis & Co., LLC (“Glass Lewis”) make a recommendation that differs from the recommendation of the Board with respect to any proposal submitted to the ~~shareholders~~ stockholders at any ~~Shareholder~~ Stockholder Meeting (other than Director Proposals), the ~~Investor Group and the members of the Investor Group~~ Ancora Investors are permitted to vote the shares of Common Stock Beneficially Owned by them at such ~~Shareholder~~ Stockholder Meeting in accordance with the ISS and Glass Lewis recommendation; provided, further, that the ~~Investor Group and the members of the Investor Group~~ Ancora Investors shall be entitled to vote the shares of Common Stock Beneficially Owned by them in their sole discretion with respect to (A) any publicly announced proposal relating to any transaction pursuant to which any person is or becomes a Beneficial Owner, directly or indirectly, of securities of the Company representing more than 50% of the Company’s then-outstanding equity interests and voting power, a merger, stock-for-stock transaction, spin-off, acquisition, disposition of all or substantially all of the assets of the Company and its subsidiaries or other business combination involving the Company, (B) any financing, recapitalization, restructuring, share issuance or similar extraordinary ~~transaction or~~ transaction, (C) the implementation of takeover defenses not in existence as of the date of this Agreement, in each case, that requires a vote of the Company’s ~~shareholders~~stockholders.

Appears in 1 contract

Samples: Cooperation Agreement (Mueller Water Products, Inc.)

Standstill and Voting. a. ~~Each member of the Investor Group agrees~~ The Ancora Parties each agree that during the Standstill Period, the ~~Investor Group~~ Ancora Parties and the ~~Investor Group~~ Ancora Affiliates will not (and they will not assist or encourage others to), directly or indirectly, in any manner, without prior written approval of the Board: i. take any actions, including acquiring, seeking to acquire or agreeing to acquire (directly or indirectly), whether by market purchases, private purchases, tender or exchange offer, through the acquisition of control of another person, by joining a “group” (within the meaning of Section 13(d)(3) of the Exchange Act), through swap or hedging transactions or otherwise) any shares of Common Stock or Warrants (or Beneficial Ownership thereof) or any securities convertible or exchangeable into or exercisable for any shares of Common Stock or Warrants (or Beneficial Ownership thereof) (including any derivative securities or any other rights decoupled from the underlying securities of the ~~Company~~Corporation) such that the Ancora ~~Investors~~ Parties would Beneficially Own in excess of ~~7.0~~9.9% of the ~~then-outstanding~~ shares of Common Stock ~~or the Pacific Point Investors would Beneficially Own in excess of 2.9% of the then-~~outstanding ~~shares of Common Stock~~at such time; ii. other than in open market sale transactions where the identity of the purchaser is not known, sell, offer, or agree to sell, directly or indirectly, through swap or hedging transactions or otherwise, the securities of the ~~Company~~ Corporation or any rights decoupled from the underlying securities held by the ~~Investor Group~~ Ancora Parties to any person or entity not (A) a party to this Agreement, (B) a member of the Board, (C) an officer of the ~~Company~~ Corporation or (D) an Affiliate of the ~~Investor Group~~ Ancora Parties (any person or entity not set forth in ~~clauses~~ clauses (~~A)-(D~~A) (D) shall be referred to as a “Third Party”) that would result in such Third Party, together with its Affiliates, owning, controlling or otherwise having any, beneficial or other ownership interest representing in the aggregate in excess of ~~5.0~~2.0% of the shares of Common Stock outstanding at such time; (A) advise or knowingly encourage or influence any other Person or knowingly assist any third party in so encouraging, assisting or influencing any other 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 the Board’s recommendation in connection with such matter) or (B) advise, influence or encourage any Person with respect to, or effect or seek to effect, whether alone or in concert with others, the election, nomination or removal of a director other than as permitted by Section 1; iv. solicit proxies or written consents of shareholders or conduct any other type of referendum (binding or non-binding) (including any “withhold,” “vote no” or similar campaign) with respect to the shares of Common Stock, or from the holders of the shares of Common Stock, 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 knowingly encourage or assist any 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 Common Stock (other than any encouragement, advice or influence that is consistent with the Board’s recommendation in connection with such matter); (A) form, join or in any other way participate in a “group” with respect to any ~~shares of Common Stock~~ Securities (other than a “group” solely consisting of the ~~Investor Group~~ Ancora Parties or ~~Investor Group~~ Ancora controlled Affiliates), (B) grant any proxy, consent or other authority to vote with respect to any matters to be voted on by the ~~Company~~Corporation’s shareholders at any annual or special shareholder meeting or pursuant to an action by written consent of the shareholders (each a “Shareholder Meeting”), other than to the named proxies included in the ~~Company~~Corporation’s proxy card for any Shareholder Meeting ~~(as defined below)~~ or in accordance with Section 2(b)) or (C) agree to deposit or deposit any ~~shares of Common Stock~~ Securities or any securities convertible or exchangeable into or exercisable for any such ~~shares of Common Stock~~ Securities in any voting trust, agreement or similar arrangement (other than (I) to the named proxies included in the ~~Company~~Corporation’s proxy card for any Shareholder Meeting, (II) customary brokerage accounts, margin accounts, prime brokerage accounts and the like or (III) any agreement solely among the ~~Investor Group~~ Ancora Parties or ~~Investor Group~~ Ancora controlled Affiliates); vi. separately or in conjunction with any third party 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 or privately, with or without conditions), indicate an interest in or effect any tender offer or exchange offer, merger, acquisition, division, reorganization, restructuring, recapitalization or other business combination involving the ~~Company~~ Corporation or any of its subsidiaries or the assets or businesses of the ~~Company~~ Corporation or any of its subsidiaries or actively encourage or initiate or support any other third party in any such activity; provided, however, that the ~~Investor Group~~ Ancora Parties and ~~Investor Group~~ Ancora Affiliates shall be permitted to (A) sell or tender their ~~shares of Common Stock~~Securities, and otherwise receive consideration, pursuant to any such transaction and (B) vote on any such transaction in accordance with Section 2(b); (A) present at any Shareholder Meeting any proposal for consideration for action by the shareholders or (B) call or seek to call, or request the call of, alone or in concert with others, or support another shareholder’s call for, any meeting of shareholders, whether or not such a meeting is permitted by the ~~Company~~Corporation’s organizational documents; viii. take any action in support of or make any proposal or request that constitutes: (A) controlling, changing or influencing the Board, management or policies of the ~~Company~~Corporation, including any plans or proposals to change the number or term of directors or the removal of any directors, or to fill any vacancies on the Board; (B) any material change in the capitalization, stock repurchase programs and practices or dividend policy of the ~~Company~~Corporation; (C) any other material change in the ~~Company~~Corporation’s management, business or corporate structure; (D) seeking to have the ~~Company~~ Corporation waive or make amendments or modifications to the ~~Company~~Corporation’s charter or bylaws~~, or other actions that may impede or facilitate the acquisition of control of the Company by any person~~; (E) causing a class of securities of the ~~Company~~ Corporation to be delisted from, or to cease to be authorized to be quoted on, any securities exchange; or (F) causing a class of securities of the ~~Company~~ Corporation to become eligible for termination of registration pursuant to Section 12(g)(4) of the Exchange Act; (G) seeking to have the Corporation waive or make amendments or modifications to the Warrants, or other actions that related to the Warrants, or (H) other actions that may impede or facilitate the acquisition of control of the Corporation by any Person; unless such actions are approved by the Board, in each case with respect to the foregoing clauses (A) through (FH)~~, except as set forth in Section 1~~; ix. make any request for shareholder list materials or other books and records of the ~~Company~~ Corporation under Section ~~220~~ 1508 of the ~~Delaware General~~ Pennsylvania Business Corporation Law of 1988, as amended (the “BCL”), or otherwise; provided that if any ~~Investor Group~~ Ancora Appointee ~~(or any Replacement Appointee, as applicable)~~ makes such a request solely in such ~~Investor Group~~ Ancora Appointee’s capacity as a director in a manner consistent with his ~~or her~~ fiduciary duties to the ~~Company~~Corporation, such material and other books and records may not be shared with any ~~member~~ other Ancora Party, Member of the ~~Investor Group~~ Ancora Parties or any ~~Investor Group~~ Ancora Affiliate, notwithstanding any other provision of this Agreement; x. ~~except in the case of fraud by the Company,~~ institute, solicit, join (as a party) or knowingly assist any litigation, arbitration or other proceeding against the ~~Company~~ Corporation or any of its current or former directors or officers (including derivative actions), other than (A) litigation by the ~~Investor Group~~ Ancora Parties to enforce the provisions of this Agreement, (B) counterclaims with respect to any proceeding initiated by, or on behalf of, the ~~Company~~ Corporation or its Affiliates against the ~~Investor Group~~ Ancora Parties or any ~~Investor Group~~ Ancora Appointee ~~(or Replacement Appointee, as applicable)~~ and (C) the exercise of statutory appraisal rights; provided that the foregoing shall not prevent the ~~Investor Group~~ Ancora Parties from responding to or complying with a validly issued legal process (and the ~~Company~~ Corporation agrees that this Section 2(a)(x) shall apply mutatis mutandis to the ~~Company~~ Corporation and its directors, officers, employees and agents (in each case, acting in such capacity) and Affiliates with respect to the ~~Investor Group~~Ancora Parties); xi. encourage, facilitate, support, participate in or enter into any negotiations, agreements, arrangements or understandings with respect to, the taking of any actions by any other Person in connection with the foregoing that is prohibited to be taken by the ~~Investor Group (except as set forth in Section 1)~~Ancora Parties; or xii. request that the ~~Company~~Corporation, directly or indirectly, amend or waive any provision of this Section 2 (including this clause (a)(xii)), other than through non-public communications with the ~~Company~~ Corporation that would not reasonably be expected to trigger public disclosure obligations for any ~~of the Parties~~Party. The foregoing provisions of this Section 2(a) shall not be deemed to prevent any ~~member~~ Member of the ~~Investor Group~~ Ancora Parties from (i) communicating privately with the Board or any of the ~~Company~~Corporation’s executive officers regarding any matter, so long as such communications are not intended to, and would not reasonably be expected to, require the ~~Company~~ Corporation or any ~~member~~ Member of the ~~Investor Group~~ Ancora Parties to make public disclosure with respect thereto, (ii) communicating privately with shareholders of the ~~Company~~ Corporation and ~~are~~ others in a manner that does not ~~made with an intent to~~ otherwise violate this Section 2(a), Section 3 hereof or any other provision of this ~~Agreement,~~ Agreement or (iii) identifying potential director candidates to serve on the Board so long as such actions do not create a public disclosure obligation for the Investor Group or the Company, are not publicly disclosed by the Investor Group or its Affiliates and are undertaken on a basis reasonably designed to be confidential; (iv) making or sending private communications to investors in any member of the Investor Group or any of their Affiliates or prospective investors in any member of the Investor Group or any of their Affiliates, provided that such statements or communications (1) are based on publicly available information; and (2) are not reasonably expected to be publicly disclosed and are understood by all parties to be confidential communications; or (v) taking any action to the extent necessary to comply with any law, rule or regulation or any action required by any governmental or regulatory authority or stock exchange that has, or may have, jurisdiction over any ~~member~~ Member of the ~~Investor Group~~Ancora Parties. Furthermore, for the avoidance of doubt, nothing in this Agreement shall be deemed to restrict in any way ~~the Investor Group Appointees (or~~ any ~~Replacement Appointee, as applicable)~~ Ancora Appointee in the exercise of ~~their~~ his fiduciary duties under applicable law as ~~directors~~ a director of the ~~Company~~Corporation. b. In respect of any vote or consent of the ~~Company~~Corporation’s shareholders during the Standstill Period (whether at an annual or special shareholder meeting or pursuant to an action by written consent of the shareholders) (each a “Shareholder Meeting”), the ~~Investor Group~~ Ancora Parties and the ~~members~~ Members of the ~~Investor Group~~ Ancora Parties shall appear or act in person or by proxy and vote all shares of Common Stock Beneficially Owned by them in accordance with the recommendation of the Board with respect to (i) the election, removal and/or replacement of directors (a “Director Proposal”), (ii) the ratification of the appointment of the ~~Company~~Corporation’s independent registered public accounting firm and (iii) any other proposal submitted to the ~~Company~~Corporation’s shareholders at a Shareholder Meeting, in each case as such recommendation of the Board is set forth in the applicable definitive proxy statement filed in respect thereof; provided, however, that in the event Institutional Shareholder Services Inc. (“ISS”) and Glass Lewis & Co., LLC (“Glass Lewis”) make a recommendation that differs from the recommendation of the Board with respect to any proposal submitted to the shareholders at any Shareholder Meeting (other than Director Proposals), the ~~Investor Group~~ Ancora Parties and the ~~members~~ Members of the ~~Investor Group~~ Ancora Parties are permitted to vote the shares of Common Stock Beneficially Owned by them at such Shareholder Meeting in accordance with the ISS ~~and Glass Lewis~~ or Gxxxx Xxxxx recommendation; provided, further, that the ~~Investor Group~~ Ancora Parties and the ~~members~~ Members of the ~~Investor Group~~ Ancora Parties shall be entitled to vote the shares of Common Stock Beneficially Owned by them in their sole discretion with respect to ~~(A)~~ any publicly announced proposal relating to any transaction pursuant to which any person is or becomes a Beneficial Owner, directly or indirectly, of securities of the Company representing more than 50% of the Company’s then-outstanding equity interests and voting power, a merger~~, stock-for-stock transaction, spin-off~~, acquisition, disposition of all or substantially all of the assets of the ~~Company~~ Corporation and its subsidiaries or other business combination involving the Company, (B) any financing, recapitalization, restructuring, share issuance or similar extraordinary transaction or (C) the implementation of takeover defenses not in existence as of the date of this AgreementCorporation, in each case, that requires a vote of the ~~Company~~Corporation’s shareholders.

Appears in 1 contract

Samples: Cooperation Agreement (Ampco Pittsburgh Corp)

Standstill and Voting. ~~a. Each member of the Investor Group agrees~~ (a) The Ancora Parties each agree that during the Standstill Period, the ~~Investor Group~~ Ancora Parties and the ~~Investor Group~~ Ancora Affiliates will not (and they will not assist or encourage others to), directly or indirectly, in any manner, without prior written approval of the Board: i. (i) take any actions, including acquiring, seeking to acquire or agreeing to acquire (directly or indirectly, whether by market purchases, private purchases, tender or exchange offer, through the acquisition of control of another person, by joining a “group” (within the meaning of Section 13(d)(3) of the Exchange Act), through swap or hedging transactions or otherwise) any shares of Common Stock (or Beneficial Ownership thereof) or any securities convertible or exchangeable into or exercisable for any shares of Common Stock (or Beneficial Ownership thereof) (including any derivative securities or any other rights decoupled from the underlying securities of the Company) such that the Ancora ~~Investors~~ Parties would Beneficially Own in excess of ~~7.0% of the then-outstanding shares of Common Stock or the Pacific Point Investors would Beneficially Own in excess of 2.9~~9.9% of the then-outstanding shares of Common Stock; (ii. ) other than in open market sale transactions where the identity of the purchaser is not known, sell, offer, or agree to sell, directly or indirectly, through swap or hedging transactions or otherwise, the securities of the Company or any rights decoupled from the underlying securities held by the ~~Investor Group~~ Ancora Parties to any person or entity not (A) a party to this Agreement, (B) a member of the Board, (C) an officer of the Company or (D) an Affiliate of the ~~Investor Group~~ Ancora Parties (any person or entity not set forth in clauses (A)-(D) shall be referred to as a “Third Party”) that would result in such Third Party, together with its Affiliates, owning, controlling or otherwise having any, beneficial or other ownership interest representing in the aggregate in excess of ~~5.0~~4.9% of the shares of Common Stock outstanding at such time; (iii) (A) advise or knowingly encourage or influence any other Person or knowingly assist any third party in so encouraging, assisting or influencing any other 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 the Board’s recommendation in connection with such matter) or (B) advise, influence or encourage any Person with respect to, or effect or seek to effect, whether alone or in concert with others, the election, nomination or removal of a director other than as permitted by Section 1; (iv. ) solicit proxies or written consents of shareholders or conduct any other type of referendum (binding or non-binding) (including any “withhold,” “vote no” or similar campaign) with respect to the shares of Common Stock, or from the holders of the shares of Common Stock, 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 knowingly encourage or assist any 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 Common Stock (other than any encouragement, advice or influence that is consistent with the Board’s recommendation in connection with such matter); (v) (A) form, join or in any other way participate in a “group” with respect to any shares of Common Stock (other than a “group” solely consisting of the ~~Investor Group~~ Ancora Parties or ~~Investor Group~~ Ancora Affiliates), (B) grant any proxy, consent or other authority to vote with respect to any matters to be voted on by the Company’s shareholders (other than to the named proxies included in the Company’s proxy card for any Shareholder Meeting (as defined below) or in accordance with Section 2(b)) or (C) agree to deposit or deposit any shares of Common Stock or any securities convertible or exchangeable into or exercisable for any such shares of Common Stock in any voting trust, agreement or similar arrangement (other than (I) to the named proxies included in the Company’s proxy card for any Shareholder Meeting, (II) customary brokerage accounts, margin accounts, prime brokerage accounts and the like or (III) any agreement solely among the ~~Investor Group~~ Ancora Parties or ~~Investor Group~~ Ancora Affiliates); (vi. ) separately or in conjunction with any third party 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 or privately, with or without conditions), indicate an interest in or 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 the assets or businesses of the Company or any of its subsidiaries or actively encourage or initiate or support any other third party in any such activity; provided, however, that the ~~Investor Group~~ Ancora Parties and ~~Investor Group~~ Ancora Affiliates shall be permitted to (Ai) sell or tender their shares of Common Stock, and otherwise receive consideration, pursuant to any such transaction and (Bii) vote on any such transaction in accordance with Section 2(b); (vii) (A) present at any Shareholder Meeting any proposal for consideration for action by the shareholders or (B) call or seek to call, or request the call of, alone or in concert with others, or support another shareholder’s call for, any meeting of shareholders, whether or not such a meeting is permitted by the Company’s organizational documents; (viii. ) take any action in support of or make any proposal or request that constitutes: (A) controlling, changing or influencing the Board, management or policies of the Company, including any plans or proposals to change the number or term of directors or the removal of any directors, or to fill any vacancies on the Board; (B) any material change in the capitalization, stock repurchase programs and practices or dividend policy of the Company; (C) any other material change in the Company’s management, business or corporate structure; (D) seeking to have the Company waive or make amendments or modifications to the Company’s charter or bylaws, or other actions that may impede or facilitate the acquisition of control of the Company by any person; (E) causing a class of securities of the Company to be delisted from, or to cease to be authorized to be quoted on, any securities exchange; or (F) causing a class of securities of the Company to become eligible for termination of registration pursuant to Section 12(g)(4) of the Exchange Act, in each case with respect to the foregoing clauses (A) through (F), except as set forth in Section 1; provided, however, that following the date that is thirty (30) days prior to the deadline for the submission of shareholder nominations for the Company’s 2022 annual meeting of shareholders (the “2022 Annual Meeting”), the Ancora Parties and the Ancora Affiliates may speak to potential director candidates in connection with the 2022 Annual Meeting so long as such conversations do not create a public disclosure obligation for the Ancora Parties or the Company and are undertaken on a basis reasonably designed to be maintained as confidential and solely between the Ancora Parties and such director candidate and otherwise in accordance in all material respects with the Ancora Parties’ normal practices in the circumstances; (ix. ) make any request for shareholder list materials or other books and records of the Company under Section ~~220~~ 00-00-000 of the ~~Delaware General Corporation Law~~ Tennessee Code or otherwise; provided that if any ~~Investor Group~~ Ancora Appointee (or any Replacement Appointee, as applicable) makes such a request solely in such ~~Investor Group~~ Ancora Appointee’s capacity as a director in a manner consistent with his (or ~~her~~ her) fiduciary duties to the Company, such material and other books and records may not be shared with any ~~member~~ other Ancora Party, Member of the ~~Investor Group~~ Ancora Parties or ~~any Investor Group~~ Ancora Affiliate, notwithstanding any other provision of this Agreement; ~~x. except in the case of fraud by the Company,~~ (x) institute, solicit, join (as a party) or knowingly assist any litigation, arbitration or other proceeding against the Company or any of its current or former directors or officers (including derivative actions), other than (A) litigation by the ~~Investor Group~~ Ancora Parties to enforce the provisions of this Agreement, (B) counterclaims with respect to any proceeding initiated by, or on behalf of, the Company or its Affiliates against the ~~Investor Group~~ Ancora Parties or any ~~Investor Group~~ Ancora Appointee (or Replacement Appointee, as applicable) and (C) the exercise of statutory appraisal rights; provided that the foregoing shall not prevent the ~~Investor Group~~ Ancora Parties from responding to or complying with a validly issued legal process (and the Company agrees that this Section 2(a)(x) shall apply mutatis mutandis to the Company and its directors, officers, employees and agents (in each case, acting in such capacity) and Affiliates with respect to the ~~Investor Group~~Ancora Parties); (xi. ) encourage, facilitate, support, participate in or enter into any negotiations, agreements, arrangements or understandings with respect to, the taking of any actions by any other Person in connection with the foregoing that is prohibited to be taken by the ~~Investor Group~~ Ancora Parties (except as set forth in Section 1); or (xii. ) request that the Company, directly or indirectly, amend or waive any provision of this Section 2 (including this clause (a)(xii)), other than through non-public communications with the Company that would not reasonably be expected to trigger public disclosure obligations for any ~~of the Parties~~Party. The foregoing provisions of this Section 2(a) shall not be deemed to prevent any ~~member~~ Member of the ~~Investor Group~~ Ancora Parties from (i) communicating privately with the Board or any of the Company’s executive officers regarding any matter, so long as such communications are not intended to, and would not reasonably be expected to, require the Company or any ~~member~~ Member of the ~~Investor Group~~ Ancora Parties to make public disclosure with respect thereto, (ii) communicating privately with shareholders of the Company and ~~are~~ others in a manner that does not ~~made with an intent to~~ otherwise violate this Section 2(a), ) or Section 3 or ~~any other provision of this Agreement,~~ (iii) identifying potential director candidates to serve on the Board so long as such actions do not create a public disclosure obligation for the Investor Group or the Company, are not publicly disclosed by the Investor Group or its Affiliates and are undertaken on a basis reasonably designed to be confidential; (iv) making or sending private communications to investors in any member of the Investor Group or any of their Affiliates or prospective investors in any member of the Investor Group or any of their Affiliates, provided that such statements or communications (1) are based on publicly available information; and (2) are not reasonably expected to be publicly disclosed and are understood by all parties to be confidential communications; or (v) taking any action to the extent necessary to comply with any law, rule or regulation or any action required by any governmental or regulatory authority or stock exchange that has, or may have, jurisdiction over any ~~member~~ Member of the ~~Investor Group~~Ancora Parties. Furthermore, for the avoidance of doubt, nothing in this Agreement shall be deemed to restrict in any way the ~~Investor Group~~ Ancora Appointees (or any Replacement Appointee, as applicable) in the exercise of their fiduciary duties under applicable law as directors of the Company. b. (b) In respect of any vote or consent of the Company’s shareholders during the Standstill Period (whether at an annual or special shareholder meeting or pursuant to an action by written consent of the shareholders) (each a “Shareholder Meeting”), the ~~Investor Group~~ Ancora Parties and the ~~members~~ Members of the ~~Investor Group~~ Ancora Parties shall appear or act in person or by proxy and vote all shares of Common Stock Beneficially Owned by them in accordance with the recommendation of the Board with respect to (i) the election, removal and/or replacement of directors (a “Director Proposal”), (ii) the ratification of the appointment of the Company’s independent registered public accounting firm and (iii) any other proposal submitted to the Company’s shareholders at a Shareholder Meeting, in each case as such recommendation of the Board is set forth in the applicable definitive proxy statement filed in respect thereof; provided, however, that in the event Institutional Shareholder Services Inc. (“ISS”) and Glass Lewis & Co., LLC (“Glass Lewis”) make a recommendation that differs from the recommendation of the Board with respect to any proposal submitted to the shareholders at any Shareholder Meeting (other than Director Proposals), the ~~Investor Group~~ Ancora Parties and the ~~members~~ Members of the ~~Investor Group~~ Ancora Parties are permitted to vote the shares of Common Stock Beneficially Owned by them at such Shareholder Meeting in accordance with the ISS and Glass Lewis recommendation; provided, further, that the ~~Investor Group~~ Ancora Parties and the ~~members~~ Members of the ~~Investor Group~~ Ancora Parties shall be entitled to vote the shares of Common Stock Beneficially Owned by them in their sole discretion with respect to ~~(A)~~ any publicly announced proposal relating to any transaction pursuant to which any person is or becomes a Beneficial Owner, directly or indirectly, of securities of the Company representing more than 50% of the Company’s then-outstanding equity interests and voting power, a merger~~, stock-for-stock transaction, spin-off~~, acquisition, disposition of all or substantially all of the assets of the Company and its subsidiaries or other business combination involving the Company, (B) any financing, recapitalization, restructuring, share issuance or similar extraordinary transaction or (C) the implementation of takeover defenses not in existence as of the date of this Agreement, in each case, that requires a vote of the Company’s shareholders.

Appears in 1 contract

Samples: Cooperation Agreement (Ancora Advisors, LLC)

Standstill and Voting. a. Each member of the Investor Group agrees that during the Standstill Period, the Investor Group and the Investor Group Affiliates will not (and they will not assist or encourage others to), directly or indirectly, in any manner, without prior written approval of the Board: i. take any actions, including acquiring, seeking to acquire or agreeing to acquire (directly or indirectly, whether by market purchases, private purchases, tender or exchange offer, through the acquisition of control of another person, by joining a “group” (within the meaning of Section 13(d)(3) of the Exchange Act), through swap or hedging transactions or otherwise) any shares of Common Stock (or Beneficial Ownership thereof) or any securities convertible or exchangeable into or exercisable for any shares of Common Stock (or Beneficial Ownership thereof) (including any derivative securities or any other rights decoupled from the underlying securities of the Company) such that the ~~Ancora Investors~~ Investor Group would Beneficially Own in the aggregate in excess of ~~7.0~~4.99% of the ~~then-outstanding shares of Common Stock or the Pacific Point Investors would Beneficially Own in excess of 2.9% of the then-outstanding~~ then‑outstanding shares of Common Stock; ii. other than in open market sale transactions where the identity of the purchaser is not known, sell, offer, or agree to sell, directly or indirectly, through swap or hedging transactions or otherwise, the securities of the Company or any rights decoupled from the underlying securities held by the Investor Group to any person or entity not (A) a party to this Agreement, (B) a member of the Board, (C) an officer of the Company or (D) an Affiliate of the Investor Group (any person or entity not set forth in clauses (~~A)-(D~~A)‑(D) shall be referred to as a “Third Party”) that would result in such Third Party, together with its Affiliates, owning, controlling or otherwise having any, beneficial or other ownership interest representing in the aggregate in excess of 5.0% of the shares of Common Stock outstanding at such time; (A) advise or knowingly encourage or influence any other Person or knowingly assist any third party in so encouraging, assisting or influencing any other 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 the Board’s recommendation in connection with such matter) or (B) advise, influence or encourage any Person with respect to, or effect or seek to effect, whether alone or in concert with others, the election, nomination or removal of a director other than as permitted by Section 1; iv. solicit proxies or written consents of ~~shareholders~~ stockholders or conduct any other type of referendum (binding or ~~non-binding~~non‑binding) (including any “withhold,” “vote no” or similar campaign) with respect to the shares of Common Stock, or from the holders of the shares of Common Stock, 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 knowingly encourage or assist any 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 Common Stock (other than any encouragement, advice or influence that is consistent with the Board’s recommendation in connection with such matter); (A) form, join or in any other way participate in a “group” with respect to any shares of Common Stock (other than a “group” solely consisting of the Investor Group or Investor Group Affiliates), (B) grant any proxy, consent or other authority to vote with respect to any matters to be voted on by the Company’s ~~shareholders~~ stockholders (other than to the named proxies included in the Company’s proxy card for any ~~Shareholder~~ Stockholder Meeting (as defined below) or in accordance with Section 2(b)) or (C) agree to deposit or deposit any shares of Common Stock or any securities convertible or exchangeable into or exercisable for any such shares of Common Stock in any voting trust, agreement or similar arrangement (other than (I) to the named proxies included in the Company’s proxy card for any ~~Shareholder~~ Stockholder Meeting, (II) customary brokerage accounts, margin accounts, prime brokerage accounts and the like or (III) any agreement solely among the Investor Group or Investor Group Affiliates); ; vi. separately or in conjunction with any third party 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 or privately, with or without conditions), indicate an interest in or 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 the assets or businesses of the Company or any of its subsidiaries or actively encourage or initiate or support any other third party in any such activity; provided, however, that the Investor Group and Investor Group Affiliates shall be permitted to (A) sell or tender their shares of Common Stock, and otherwise receive consideration, pursuant to any such transaction and (B) vote on any such transaction in accordance with Section 2(b); (A) nominate, recommend for nomination or give notice of an intent to nominate or recommend for nomination a person for election at any Stockholder Meeting at which the Company’s directors are to be elected or (B)(I) present at any ~~Shareholder~~ Stockholder Meeting any proposal (pursuant to Rule 14a-8 or otherwise) for consideration for action by the ~~shareholders~~ stockholders or (BII) call or seek to call, or request the call of, alone or in concert with others, or support another ~~shareholder~~stockholder’s call for, any meeting of ~~shareholders~~stockholders, whether or not such a meeting is permitted by the Company’s organizational documents; viii. take any action in support of or make any proposal or request that constitutes: (A) controlling, changing or influencing the Board, management or policies of the Company, including any plans or proposals to change the number or term of directors or the removal of any directors, or to fill any vacancies on the Board; (B) any material change in the capitalization, stock repurchase programs and practices or dividend policy of the Company; (C) any other material change in the Company’s management, business or corporate structure; (D) seeking to have the Company waive or make amendments or modifications to the Company’s ~~charter~~ charter, the Bylaws or ~~bylaws~~any of the Company Policies (each as may be amended from time to time), or other actions that may impede or facilitate the acquisition of control of the Company by any person; (E) causing a class of securities of the Company to be delisted from, or to cease to be authorized to be quoted on, any securities exchange; or (F) causing a class of securities of the Company to become eligible for termination of registration pursuant to Section 12(g)(4) of the Exchange Act, in each case with respect to the foregoing clauses (A) through (F), except as set forth in Section 1; ix. make any request for ~~shareholder~~ stockholder list materials or other books and records of the Company under Section 220 of the Delaware General Corporation Law or otherwise; provided that if any ~~Investor Group Appointee~~ New Director (or any Replacement ~~Appointee~~New Director, as applicable) makes such a request solely in such ~~Investor Group Appointee~~New Director’s capacity as a director of the Company in a manner consistent with his or her fiduciary duties to the Company, such material and other books and records may not be shared with any member of the Investor Group or any Investor Group Affiliate, notwithstanding any other provision of this Agreement; ; x. ~~except in the case of fraud by the Company,~~ institute, solicit, join (as a party) or knowingly assist any litigation, arbitration or other proceeding against the Company or any of its current or former directors or officers (including derivative actions), other than (A) litigation by the Investor Group to enforce the provisions of this Agreement, (B) counterclaims with respect to any proceeding initiated by, or on behalf of, the Company or its Affiliates against the Investor Group or any ~~Investor Group Appointee~~ New Director (or any Replacement ~~Appointee~~New Director, as applicable) and (C) the exercise of statutory appraisal rights; provided that the foregoing shall not prevent the Investor Group from responding to or complying with a validly issued legal process (and the Company agrees that this Section 2(a)(x) shall apply mutatis mutandis to the Company and its directors, officers, employees and agents (in each case, acting in such capacity) and Affiliates with respect to the Investor Group); xi. encourage, facilitate, support, participate in or enter into any negotiations, agreements, arrangements or understandings with respect to, the taking of any actions by any other Person in connection with the foregoing that is prohibited to be taken by the Investor Group (except as set forth in Section 1); or xii. request that the Company, directly or indirectly, amend or waive any provision of this Section 2 (including this clause (a)(xii)), other than through non-public communications with the Company that would not reasonably be expected to trigger public disclosure obligations for any of the Parties. The foregoing provisions of this Section 2(a) shall not be deemed to prevent any member of the Investor Group from (i) communicating privately with the Board or any of the Company’s executive officers regarding any matter, so long as such communications are not intended to, and would not reasonably be expected to, require the Company or any member of the Investor Group to make public disclosure with respect thereto, (ii) communicating privately with shareholders of the Company and are not made with an intent to otherwise violate this Section 2(a), Section 3 or any other provision of this Agreement, (iii) identifying potential director candidates to serve on the Board so long as such actions do not create a public disclosure obligation for the Investor Group or the Company, are not publicly disclosed by the Investor Group or its Affiliates and are undertaken on a basis reasonably designed to be confidential; (iv) making or sending private communications to investors in any member of the Investor Group or any of their Affiliates or prospective investors in any member of the Investor Group or any of their Affiliates, provided that such statements or communications (1) are based on publicly available information; and (2) are not reasonably expected to be publicly disclosed and are understood by all parties to be confidential communications; or (v) taking any action to the extent necessary to comply with any law, rule or regulation or any action required by any governmental or regulatory authority or stock exchange that has, or may have, jurisdiction over any member of the Investor Group. Furthermore, for the avoidance of doubt, nothing in this Agreement shall be deemed to restrict in any way the Investor Group Appointees (or any Replacement Appointee, as applicable) in the exercise of their fiduciary duties under applicable law as directors of the Company. b. In respect of any vote or consent of the Company’s shareholders during the Standstill Period (whether at an annual or special shareholder meeting or pursuant to an action by written consent of the shareholders) (each a “Shareholder Meeting”), the Investor Group and the members of the Investor Group shall appear or act in person or by proxy and vote all shares of Common Stock Beneficially Owned by them in accordance with the recommendation of the Board with respect to (i) the election, removal and/or replacement of directors (a “Director Proposal”), (ii) the ratification of the appointment of the Company’s independent registered public accounting firm and (iii) any other proposal submitted to the Company’s shareholders at a Shareholder Meeting, in each case as such recommendation of the Board is set forth in the applicable definitive proxy statement filed in respect thereof; provided, however, that in the event Institutional Shareholder Services Inc. (“ISS”) and Glass Lewis & Co., LLC (“Glass Lewis”) make a recommendation that differs from the recommendation of the Board with respect to any proposal submitted to the shareholders at any Shareholder Meeting (other than Director Proposals), the Investor Group and the members of the Investor Group are permitted to vote the shares of Common Stock Beneficially Owned by them at such Shareholder Meeting in accordance with the ISS and Glass Lewis recommendation; provided, further, that the Investor Group and the members of the Investor Group shall be entitled to vote the shares of Common Stock Beneficially Owned by them in their sole discretion with respect to (A) any publicly announced proposal relating to any transaction pursuant to which any person is or becomes a Beneficial Owner, directly or indirectly, of securities of the Company representing more than 50% of the Company’s then-outstanding equity interests and voting power, a merger, stock-for-stock transaction, spin-off, acquisition, disposition of all or substantially all of the assets of the Company and its subsidiaries or other business combination involving the Company, (B) any financing, recapitalization, restructuring, share issuance or similar extraordinary transaction or (C) the implementation of takeover defenses not in existence as of the date of this Agreement, in each case, that requires a vote of the Company’s shareholders.

Appears in 1 contract

Samples: Cooperation Agreement (Berry Global Group, Inc.)

Standstill and Voting. a. ~~Each member of the Investor Group agrees~~ The Ancora Parties each agree that during the Standstill Period, the ~~Investor Group~~ Ancora Parties and the ~~Investor Group~~ Ancora Affiliates will not (and they will not assist or encourage others to), directly or indirectly, in any manner, without prior written approval of the Board: i. take any actions, including acquiring, seeking to acquire or agreeing to acquire (directly or indirectly, whether by market purchases, private purchases, tender or exchange offer, through the acquisition of control of another person, by joining a “group” (within the meaning of Section 13(d)(3) of the Exchange Act), through swap or hedging transactions or otherwise) any shares of Common Stock or Warrants (or Beneficial Ownership thereof) or any securities convertible or exchangeable into or exercisable for any shares of Common Stock or Warrants (or Beneficial Ownership thereof) (including any derivative securities or any other rights decoupled from the underlying securities of the ~~Company~~Corporation) such that the Ancora ~~Investors~~ Parties would Beneficially Own in excess of ~~7.0~~9.9% of the ~~then-outstanding~~ shares of Common Stock ~~or the Pacific Point Investors would Beneficially Own in excess of 2.9% of the then-~~outstanding ~~shares of Common Stock~~at such time; ii. other than in open market sale transactions where the identity of the purchaser is not known, sell, offer, or agree to sell, directly or indirectly, through swap or hedging transactions or otherwise, the securities of the ~~Company~~ Corporation or any rights decoupled from the underlying securities held by the ~~Investor Group~~ Ancora Parties to any person or entity not (A) a party to this Agreement, (B) a member of the Board, (C) an officer of the ~~Company~~ Corporation or (D) an Affiliate of the ~~Investor Group~~ Ancora Parties (any person or entity not set forth in clauses (A)-(D) shall be referred to as a “Third Party”) that would result in such Third Party, together with its Affiliates, owning, controlling or otherwise having any, beneficial or other ownership interest representing in the aggregate in excess of ~~5.0~~2.0% of the shares of Common Stock outstanding at such time; (A) advise or knowingly encourage or influence any other Person or knowingly assist any third party in so encouraging, assisting or influencing any other 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 the Board’s recommendation in connection with such matter) or (B) advise, influence or encourage any Person with respect to, or effect or seek to effect, whether alone or in concert with others, the election, nomination or removal of a director other than as permitted by Section 1; iv. solicit proxies or written consents of shareholders or conduct any other type of referendum (binding or non-binding) (including any “withhold,” “vote no” or similar campaign) with respect to the shares of Common Stock, or from the holders of the shares of Common Stock, 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 knowingly encourage or assist any 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 Common Stock (other than any encouragement, advice or influence that is consistent with the Board’s recommendation in connection with such matter); (A) form, join or in any other way participate in a “group” with respect to any ~~shares of Common Stock~~ Securities (other than a “group” solely consisting of the ~~Investor Group~~ Ancora Parties or ~~Investor Group~~ Ancora controlled Affiliates), (B) grant any proxy, consent or other authority to vote with respect to any matters to be voted on by the ~~Company~~Corporation’s shareholders (other than to the named proxies included in the ~~Company~~Corporation’s proxy card for any Shareholder Meeting (as defined below) or in accordance with Section 2(b)) or (C) agree to deposit or deposit any ~~shares of Common Stock~~ Securities or any securities convertible or exchangeable into or exercisable for any such ~~shares of Common Stock~~ Securities in any voting trust, agreement or similar arrangement (other than (I) to the named proxies included in the ~~Company~~Corporation’s proxy card for any Shareholder Meeting, (II) customary brokerage accounts, margin accounts, prime brokerage accounts and the like or (III) any agreement solely among the ~~Investor Group~~ Ancora Parties or ~~Investor Group~~ Ancora controlled Affiliates); vi. separately or in conjunction with any third party 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 or privately, with or without conditions), indicate an interest in or effect any tender offer or exchange offer, merger, acquisition, division, reorganization, restructuring, recapitalization or other business combination involving the ~~Company~~ Corporation or any of its subsidiaries or the assets or businesses of the ~~Company~~ Corporation or any of its subsidiaries or actively encourage or initiate or support any other third party in any such activity; provided, however, that the ~~Investor Group~~ Ancora Parties and ~~Investor Group~~ Ancora Affiliates shall be permitted to (A) sell or tender their ~~shares of Common Stock~~Securities, and otherwise receive consideration, pursuant to any such transaction and (B) vote on any such transaction in accordance with Section 2(b); (A) present at any Shareholder Meeting any proposal for consideration for action by the shareholders or (B) call or seek to call, or request the call of, alone or in concert with others, or support another shareholder’s call for, any meeting of shareholders, whether or not such a meeting is permitted by the ~~Company~~Corporation’s organizational documents; viii. take any action in support of or make any proposal or request that constitutes: (A) controlling, changing or influencing the Board, management or policies of the ~~Company~~Corporation, including any plans or proposals to change the number or term of directors or the removal of any directors, or to fill any vacancies on the Board; (B) any material change in the capitalization, stock repurchase programs and practices or dividend policy of the ~~Company~~Corporation; (C) any other material change in the ~~Company~~Corporation’s management, business or corporate structure; (D) seeking to have the ~~Company~~ Corporation waive or make amendments or modifications to the ~~Company~~Corporation’s charter or bylaws, or other actions that may impede or facilitate the acquisition of control of the ~~Company~~ Corporation by any person; (E) causing a class of securities of the ~~Company~~ Corporation to be delisted from, or to cease to be authorized to be quoted on, any securities exchange; or (F) causing a class of securities of the ~~Company~~ Corporation to become eligible for termination of registration pursuant to Section 12(g)(4) of the Exchange ~~Act~~Act or (G) seeking to have the Corporation waive or make amendments or modifications to the Warrants, or other actions that related to the Warrants, unless such actions are approved by the Board, in each case with respect to the foregoing clauses (A) through (FG)~~, except as set forth in Section 1~~; ix. make any request for shareholder list materials or other books and records of the ~~Company~~ Corporation under Section ~~220~~ 1508 of the ~~Delaware General Corporation Law~~ PA BCL, or otherwise; provided that if any ~~Investor Group~~ Ancora Appointee (or any Replacement Appointee, as applicable) makes such a request solely in such ~~Investor Group~~ Ancora Appointee’s capacity as a director in a manner consistent with his (or ~~her~~ her) fiduciary duties to the ~~Company~~Corporation, such material and other books and records may not be shared with any ~~member~~ other Ancora Party, Member of the ~~Investor Group~~ Ancora Parties or any ~~Investor Group~~ Ancora Affiliate, notwithstanding any other provision of this Agreement; x. ~~except in the case of fraud by the Company,~~ institute, solicit, join (as a party) or knowingly assist any litigation, arbitration or other proceeding against the ~~Company~~ Corporation or any of its current or former directors or officers (including derivative actions), other than (A) litigation by the ~~Investor Group~~ Ancora Parties to enforce the provisions of this Agreement, (B) counterclaims with respect to any proceeding initiated by, or on behalf of, the ~~Company~~ Corporation or its Affiliates against the ~~Investor Group~~ Ancora Parties or any ~~Investor Group~~ Ancora Appointee (or Replacement Appointee, as applicable) and (C) the exercise of statutory appraisal rights; provided that the foregoing shall not prevent the ~~Investor Group~~ Ancora Parties from responding to or complying with a validly issued legal process (and the ~~Company~~ Corporation agrees that this Section 2(a)(x) shall apply mutatis mutandis to the ~~Company~~ Corporation and its directors, officers, employees and agents (in each case, acting in such capacity) and Affiliates with respect to the ~~Investor Group~~Ancora Parties); xi. encourage, facilitate, support, participate in or enter into any negotiations, agreements, arrangements or understandings with respect to, the taking of any actions by any other Person in connection with the foregoing that is prohibited to be taken by the ~~Investor Group (except as set forth in Section 1)~~Ancora Parties; or xii. request that the ~~Company~~Corporation, directly or indirectly, amend or waive any provision of this Section 2 (including this clause (a)(xii)), other than through non-public communications with the ~~Company~~ Corporation that would not reasonably be expected to trigger public disclosure obligations for any ~~of the Parties~~Party. The foregoing provisions of this Section 2(a) shall not be deemed to prevent any ~~member~~ Member of the ~~Investor Group~~ Ancora Parties from (i) communicating privately with the Board or any of the ~~Company~~Corporation’s executive officers regarding any matter, so long as such communications are not intended to, and would not reasonably be expected to, require the ~~Company~~ Corporation or any ~~member~~ Member of the ~~Investor Group~~ Ancora Parties to make public disclosure with respect thereto, (ii) communicating privately with shareholders of the ~~Company~~ Corporation and ~~are~~ others in a manner that does not ~~made with an intent to~~ otherwise violate this Section 2(a), Section 3 hereof or any other provision of this ~~Agreement,~~ Agreement or (iii) identifying potential director candidates to serve on the Board so long as such actions do not create a public disclosure obligation for the Investor Group or the Company, are not publicly disclosed by the Investor Group or its Affiliates and are undertaken on a basis reasonably designed to be confidential; (iv) making or sending private communications to investors in any member of the Investor Group or any of their Affiliates or prospective investors in any member of the Investor Group or any of their Affiliates, provided that such statements or communications (1) are based on publicly available information; and (2) are not reasonably expected to be publicly disclosed and are understood by all parties to be confidential communications; or (v) taking any action to the extent necessary to comply with any law, rule or regulation or any action required by any governmental or regulatory authority or stock exchange that has, or may have, jurisdiction over any ~~member~~ Member of the ~~Investor Group~~Ancora Parties. Furthermore, for the avoidance of doubt, nothing in this Agreement shall be deemed to restrict in any way the ~~Investor Group~~ Ancora Appointees (or any Replacement Appointee, as applicable) in the exercise of their fiduciary duties under applicable law as directors of the ~~Company~~Corporation. b. In respect of any vote or consent of the ~~Company~~Corporation’s shareholders during the Standstill Period (whether at an annual or special shareholder meeting or pursuant to an action by written consent of the shareholders) (each a “Shareholder Meeting”), the ~~Investor Group~~ Ancora Parties and the ~~members~~ Members of the ~~Investor Group~~ Ancora Parties shall appear or act in person or by proxy and vote all shares of Common Stock Beneficially Owned by them in accordance with the recommendation of the Board with respect to (i) the election, removal and/or replacement of directors (a “Director Proposal”), (ii) the ratification of the appointment of the ~~Company~~Corporation’s independent registered public accounting firm and (iii) any other proposal submitted to the ~~Company~~Corporation’s shareholders at a Shareholder Meeting, in each case as such recommendation of the Board is set forth in the applicable definitive proxy statement filed in respect thereof; provided, however, that in the event Institutional Shareholder Services Inc. (“ISS”) and Glass Lewis & Co., LLC (“Glass Lewis”) make a recommendation that differs from the recommendation of the Board with respect to any proposal submitted to the shareholders at any Shareholder Meeting (other than Director Proposals), the ~~Investor Group~~ Ancora Parties and the ~~members~~ Members of the ~~Investor Group~~ Ancora Parties are permitted to vote the shares of Common Stock Beneficially Owned by them at such Shareholder Meeting in accordance with the ISS ~~and~~ or Glass Lewis recommendation; provided, further, that the ~~Investor Group~~ Ancora Parties and the ~~members~~ Members of the ~~Investor Group~~ Ancora Parties shall be entitled to vote the shares of Common Stock Beneficially Owned by them in their sole discretion with respect to ~~(A)~~ any publicly announced proposal relating to any transaction pursuant to which any person is or becomes a Beneficial Owner, directly or indirectly, of securities of the Company representing more than 50% of the Company’s then-outstanding equity interests and voting power, a merger~~, stock-for-stock transaction, spin-off~~, acquisition, disposition of all or substantially all of the assets of the ~~Company~~ Corporation and its subsidiaries or other business combination involving the Company, (B) any financing, recapitalization, restructuring, share issuance or similar extraordinary transaction or (C) the implementation of takeover defenses not in existence as of the date of this AgreementCorporation, in each case, that requires a vote of the ~~Company~~Corporation’s shareholders.

Appears in 1 contract

Samples: Cooperation Agreement (Ampco Pittsburgh Corp)

Standstill and Voting. a. ~~Each member of the Investor Group agrees~~ The Ancora Parties each agree that during the Standstill ~~Period~~Period (as defined below), the ~~Investor Group~~ Ancora Parties and the ~~Investor Group~~ Ancora Affiliates will not (and they will not assist or encourage others to), directly or indirectly, in any manner, without prior written approval of the Board: i. take any actions, including acquiring, seeking to acquire or agreeing to acquire (directly or indirectly), whether by market purchases, private purchases, tender or exchange offer, through the acquisition of control of another person, by joining a “group” (within the meaning of Section 13(d)(3) of the Exchange Act), through swap or hedging transactions or otherwise) , any shares of Common Stock (or Beneficial Ownership thereof) or any securities convertible or exchangeable into or exercisable for any shares of Common Stock (or Beneficial Ownership thereof) (including any derivative securities or any other rights decoupled from the underlying securities of the ~~Company~~Corporation) such that the Ancora ~~Investors~~ Parties would Beneficially Own in excess of ~~7.0~~7.5% of the ~~then-outstanding~~ shares of Common Stock ~~or the Pacific Point Investors would Beneficially Own in excess of 2.9% of the then-~~outstanding ~~shares of Common Stock;~~at such time; ii. other than in open market sale transactions where the identity of the purchaser is not known, sell, offer, or agree to sell, directly or indirectly, through swap or hedging transactions or otherwise, the securities of the ~~Company~~ Corporation or any rights decoupled from the underlying securities held by the ~~Investor Group~~ Ancora Parties to any person or entity not (A) a party to this Agreement, (B) a member of the Board, (C) an officer of the ~~Company~~ Corporation or (D) an Affiliate of the ~~Investor Group~~ Ancora Parties (any person or entity not set forth in the foregoing clauses (A)-(D) shall be referred to as a “Third Party”) that would result in such Third Party, together with its Affiliates, owning, controlling or otherwise having ~~any,~~ any beneficial or other ownership interest representing in the aggregate in excess of ~~5.0~~2.0% of the shares of Common Stock outstanding at such time; (A) advise or knowingly encourage or influence any other Person or knowingly assist any third party in so encouraging, assisting or influencing any other 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 the Board’s recommendation in connection with such matter) or (B) advise, influence or encourage any Person with respect to, or effect or seek to effect, whether alone or in concert with others, the election, nomination or removal of a ~~director other than as permitted by Section 1~~director; iv. solicit proxies or written consents of shareholders or conduct any other type of referendum (binding or non-binding) (including any “withhold,” “vote no” or similar campaign) with respect to the shares of Common Stock, or from the holders of the shares of Common Stock, 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 knowingly encourage or assist any 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 Common Stock (other than any encouragement, advice or influence that is consistent with the Board’s recommendation in connection with such matter); (A) form, join or in any other way participate in a “group” with respect to any ~~shares of Common Stock~~ securities (other than a “group” solely consisting of the ~~Investor Group~~ Ancora Parties or ~~Investor Group~~ Ancora controlled Affiliates), (B) grant any proxy, consent or other authority to vote with respect to any matters to be voted on by the ~~Company~~Corporation’s shareholders at any annual or special shareholder meeting or pursuant to an action by written consent of the shareholders (each a “Shareholder Meeting”), other than to the named proxies included in the ~~Company~~Corporation’s proxy card for any Shareholder Meeting ~~(as defined below)~~ or in accordance with Section 2(b)) or (C) agree to deposit or deposit any ~~shares of Common Stock~~ securities or any securities convertible or exchangeable into or exercisable for any such ~~shares of Common Stock~~ securities in any voting trust, agreement or similar arrangement (other than (I) to the named proxies included in the ~~Company~~Corporation’s proxy card for any Shareholder Meeting, (II) customary brokerage accounts, margin accounts, prime brokerage accounts and the like or (III) any agreement solely among the ~~Investor Group~~ Ancora Parties or ~~Investor Group~~ Ancora controlled Affiliates); vi. separately or in conjunction with any third party 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 or privately, with or without conditions), indicate an interest in or effect any tender offer or exchange offer, merger, acquisition, division, reorganization, restructuring, recapitalization or other business combination involving the ~~Company~~ Corporation or any of its subsidiaries or the assets or businesses of the ~~Company~~ Corporation or any of its subsidiaries or actively encourage or initiate or support any other third party in any such activity; provided, however, that the ~~Investor Group~~ Ancora Parties and ~~Investor Group~~ Ancora Affiliates shall be permitted to (A) sell or tender their ~~shares~~ securities subject to applicable rules of ~~Common Stock~~the SEC and the New York Stock Exchange, and otherwise receive consideration, pursuant to any such transaction and (B) vote on any such transaction in accordance with Section 2(b); (A) nominate, recommend for nomination, or give notice of an intent to nominate or recommend for nomination a person for election at any Shareholder Meeting at which the Corporation’s directors are to be elected, (B) present at any Shareholder Meeting any proposal for consideration for action by the ~~shareholders~~ shareholders, or (BC) call or seek to call, or request the call of, alone or in concert with others, or support another shareholder’s call for, any meeting of shareholders, whether or not such a meeting is permitted by the ~~Company~~Corporation’s organizational documents; viii. take any action in support of or make any proposal or request that constitutes: (A) controlling, changing or influencing the Board, management or policies of the ~~Company~~Corporation, including any plans or proposals to change the number or term of directors or the removal of any directors, or to fill any vacancies on the Board; (B) any material change in the capitalization, stock repurchase programs and practices or dividend policy of the ~~Company~~Corporation; (C) any other material change in the ~~Company~~Corporation’s management, business or corporate structure; (D) seeking to have the ~~Company~~ Corporation waive or make amendments or modifications to the ~~Company~~Corporation’s charter or ~~bylaws,~~ bylaws or take other actions that may impede or facilitate the acquisition of control of the ~~Company~~ Corporation by any ~~person~~Person; (E) causing a class of securities of the ~~Company~~ Corporation to be delisted from, or to cease to be authorized to be quoted on, any securities exchange; or (F) causing a class of securities of the ~~Company~~ Corporation to become eligible for termination of registration pursuant to Section 12(g)(4) of the Exchange Act, in each case with respect to the foregoing clauses (A) through (F)~~, except as set forth in Section 1~~; ix. make any request for shareholder list materials or other books and records of the ~~Company~~ Corporation under Chapter 52 Section ~~220~~ 2 (IC 23-1-52-2) of the ~~Delaware General Corporation Law~~ IBCL, or otherwise; provided that if any ~~Investor Group Appointee~~ New Independent Director (or any Replacement ~~Appointee~~Director, as applicable) makes such a request solely in such ~~Investor Group Appointee~~New Independent Director’s (or any Replacement Director’s, as applicable) capacity as a director in a manner consistent with his or her fiduciary duties to the ~~Company~~Corporation, such material and other books and records may not be shared with any ~~member~~ other Ancora Party, Member of the ~~Investor Group~~ Ancora Parties or any ~~Investor Group~~ Ancora Affiliate, notwithstanding any other provision of this Agreement; x. except in the case of fraud by the Company, institute, solicit, join (as a party) or knowingly assist any litigation, arbitration or other proceeding against the Company or any of its current or former directors or officers (including derivative actions), other than (A) litigation by the Investor Group to enforce the provisions of this Agreement, (B) counterclaims with respect to any proceeding initiated by, or on behalf of, the Company or its Affiliates against the Investor Group or any Investor Group Appointee (or Replacement Appointee, as applicable) and (C) the exercise of statutory appraisal rights; provided that the foregoing shall not prevent the Investor Group from responding to or complying with a validly issued legal process (and the Company agrees that this Section 2(a)(x) shall apply mutatis mutandis to the Company and its directors, officers, employees and agents (in each case, acting in such capacity) and Affiliates with respect to the Investor Group); xi. encourage, facilitate, support, participate in or enter into any negotiations, agreements, arrangements or understandings with respect ~~to,~~ to the taking of any actions by any other Person in connection with the foregoing that is prohibited to be taken by the ~~Investor Group (except as set forth in Section 1)~~Ancora Parties; or ~~xii~~xi. request that the ~~Company~~Corporation, directly or indirectly, amend or waive any provision of this Section 2 (including this clause (~~a)(xii~~a)(xi)), other than through non-public communications with the ~~Company~~ Corporation that would not reasonably be expected to trigger public disclosure obligations for any ~~of the Parties~~Party. The foregoing provisions of this Section 2(a) shall not be deemed to prevent any ~~member~~ Member of the ~~Investor Group~~ Ancora Parties from (i) communicating privately with the Board or any of the ~~Company~~Corporation’s executive officers regarding any matter, so long as such communications are not intended to, and would not reasonably be expected to, require the ~~Company~~ Corporation or any ~~member~~ Member of the ~~Investor Group~~ Ancora Parties to make public disclosure with respect thereto, ; (ii) communicating privately with shareholders of the ~~Company~~ Corporation and ~~are~~ others in a manner that does not ~~made with an intent to~~ otherwise violate this Section 2(a), Section 3 hereof or any other provision of this Agreement, ; (iii) only during the period thirty (30) days prior to the termination of the Standstill Period, identifying potential director candidates to serve on the ~~Board~~ Board, so long as such actions do not create a public disclosure obligation for the ~~Investor Group~~ Ancora Parties or the ~~Company~~Corporation, are not publicly disclosed by the ~~Investor Group~~ Ancora Parties or its Affiliates and are undertaken on a basis reasonably designed to be confidential; (iv) making or sending private communications to investors in any ~~member~~ Member of the ~~Investor Group or any of their Affiliates or prospective investors in any member of the Investor Group~~ Ancora Parties or any of their Affiliates, provided that such statements or communications (1) are based on publicly available information~~; and~~ , (2) are not reasonably expected to be publicly disclosed and are understood by all parties to be confidential communications, and (3) pertain to the investor’s investment in the Ancora Parties or any of their Affiliates; or (v) taking any action to the extent necessary to comply with any law, rule or regulation or any action required by any governmental or regulatory authority or stock exchange that has, or may have, jurisdiction over any ~~member~~ Member of the ~~Investor Group~~Ancora Parties. Furthermore, for the avoidance of doubt, nothing in this Agreement shall be deemed to restrict in any way ~~the Investor Group Appointees~~ any New Independent Director (or any Replacement ~~Appointee~~Director, as applicable) in the exercise of ~~their~~ his or her fiduciary duties under applicable law as ~~directors~~ a director of the ~~Company~~Corporation. b. In respect of any vote or consent of the ~~Company~~Corporation’s shareholders during the Standstill Period (whether at an annual or special shareholder meeting or pursuant to an action by written consent of the shareholders~~) (each a “Shareholder Meeting”~~), the ~~Investor Group~~ Ancora Parties and the ~~members~~ Members of the ~~Investor Group~~ Ancora Parties shall appear or act in person or by proxy and vote all shares of Common Stock Beneficially Owned by them in accordance with the recommendation of the Board with respect to (i) the election, removal and/or replacement of directors (a “Director Proposal”), (ii) the ratification of the appointment of the ~~Company~~Corporation’s independent registered public accounting firm and (iii) any other proposal submitted to the ~~Company~~Corporation’s shareholders at a Shareholder Meeting, in each case as such recommendation of the Board is set forth in the applicable definitive proxy statement filed in respect thereof; provided, however, that in the event Institutional Shareholder Services Inc. (“ISS”) and Glass Lewis & Co., LLC (“Glass Lewis”) make a recommendation that differs from the recommendation of the Board with respect to any proposal submitted to the shareholders at any Shareholder Meeting (other than Director Proposals), the ~~Investor Group~~ Ancora Parties and the ~~members~~ Members of the ~~Investor Group~~ Ancora Parties are permitted to vote the shares of Common Stock Beneficially Owned by them at such Shareholder Meeting in accordance with the ISS ~~and Glass Lewis~~ or Gxxxx Xxxxx recommendation; provided, further, that the ~~Investor Group~~ Ancora Parties and the ~~members~~ Members of the ~~Investor Group~~ Ancora Parties shall be entitled to vote the shares of Common Stock Beneficially Owned by them in their sole discretion with respect to (A) to any publicly announced proposal relating to any transaction pursuant to which any person is or becomes a Beneficial Owner, directly or indirectly, of securities of the ~~Company~~ Corporation representing more than 50% of the ~~Company~~Corporation’s ~~then-~~then outstanding equity ~~interests~~ interest and voting power, a merger, ~~stock-for-~~stock for stock transaction~~, spin-off~~, acquisition, disposition of all or substantially all of the assets of the ~~Company~~ Corporation and its subsidiaries or other business combination involving the ~~Company,~~ Corporation or (B) any financing, recapitalization, restructuring, share issuance or similar extraordinary ~~transaction or (C) the implementation of takeover defenses not in existence as of the date of this Agreement~~transaction, in each case, that requires a vote of the ~~Company~~Corporation’s shareholders.

Appears in 1 contract

Samples: Cooperation Agreement (Elanco Animal Health Inc)

Common use of Standstill and Voting Clause in Contracts