Common use of Standstill Voting Clause in Contracts

Standstill Voting. (a) For the period beginning on the date hereof and ending on the twenty-four (24) month anniversary of the date hereof (the “Standstill Period”), Spectrum shall not, and shall cause its Subsidiaries, directors and officers and shall direct its Representatives acting on its and its respective Subsidiaries’ behalf not to, directly or indirectly (including through any arrangements with a third party): (i) effect or seek, offer or propose (whether publicly or otherwise) to effect, or cause or participate in or in any way assist any other Person to effect or seek, offer or propose (whether publicly or otherwise) to effect or participate in, in each case directly or indirectly, (1) except for Equity Securities received by way of stock splits, stock dividends, reclassifications, recapitalizations or other distributions by the Company in respect of its Common Stock, (x) any acquisition, agreement to acquire, proposal or offer to acquire (including through the acquisition of Beneficial Ownership) of (by purchase or otherwise) any Equity Securities or Derivative Instruments, or (y) any authorization for or the making of a tender offer, exchange offer or other offer or proposal, whether oral or written, to acquire (by purchase or otherwise) any Equity Securities or Derivative Instruments of the Company; (2) engaging in any solicitation of proxies or written consents to vote (or withhold the vote of) any Voting Securities, or conduct any binding or nonbinding referendum with respect to any Voting Securities, or assist or participate in any other way, in any solicitation of proxies (or written consents) with respect to any Voting Securities, or otherwise become a “participant” in a “solicitation,” as such terms are defined in Instruction 3 of Item 4 of Schedule 14A and Rule 14a-1 of Regulation 14A, respectively, under the Exchange Act, to vote (or withhold the vote of) any securities of the Company; (3) seeking to advise, encourage, or influence any Person with respect to the voting of (or execution of a written consent in respect of), acquisition of or disposition of any securities of the Company; (4) any merger, recapitalization, reorganization, business combination or other extraordinary transaction involving the Company, any Subsidiary of the Company, or any of its or their respective securities or assets, or the making of any public announcement with respect to such proposal or offer, in each case, other than transactions contemplated by the Battery Agreement (as defined in the Acquisition Agreement) and in Spectrum’s capacity as a party thereto; (5) any recapitalization, restructuring, liquidation, dissolution or other similar transaction with respect to the Company or any of its Subsidiaries; (6) taking any action in support of or make any proposal or request that constitutes (or would constitute if taken): (A) knowingly or intentionally advising, controlling, changing, or influencing the Board or management of the Company, including any plans or proposals to change the voting standard with respect to Director elections, number or term of Directors or to fill any vacancies on the Board, (B) any change in the capitalization, stock repurchase programs and practices, or dividend policy of the Company, (C) any other change in the Company’s management, business, or corporate structure, (D) seeking to have the Company waive or make amendments or modifications to the 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; (7) communicating with shareholders of the Company or others pursuant to Rule 14a-1(l)(2)(iv) under the Exchange Act, in each case in respect of any action described in this Section 2.1(a); (8) engaging in any course of conduct with the purpose of causing shareholders of the Company to vote contrary to the recommendation of the Board on any matter presented to the Company’s shareholders for their vote at any meeting of the Company’s shareholders or by written consent; (9) calling or seeking to call, or request the call of, alone or in concert with others, any meeting of shareholders of the Company, whether or not such a meeting is permitted by the Charter or Bylaws, including a “town hall meeting” or initiating any shareholder proposal, or initiating or proposing any action by written consent, in each case for action by the shareholders of the Company; (10) act, seek, facilitate or encourage any Person to submit nominations or proposals, whether in furtherance of a “contested solicitation” or otherwise, for the appointment, election or removal of Directors or otherwise with respect to the Company or seek, facilitate, encourage, or take any other action with respect to the appointment, election or removal of any directors (11) demand a copy of the Company’s list of shareholders or its other books and records or make any request under Section 351.215 of the General and Business Corporation Law of Missouri or equivalent state or federal laws; (12) otherwise acting, alone or in concert with others, to seek representation on or to knowingly or intentionally control or influence the management, Board, shareholders or to knowingly or intentionally control or influence policies of Company or to obtain representation on the Board of the Company or its controlled Affiliates; (ii) form, join or in any way participate in a “group” as defined in Section 13(d)(3) of the Exchange Act, for the purpose of voting, acquiring, holding, or disposing of, any Voting Securities or with respect to, or otherwise act in concert with, any Person in respect of any of the types of matters set forth in Section 2.1(a)(i) above; (iii) request the Company or any of its Subsidiaries, directly or indirectly, to amend or waive any provision of this Section 2.1(a); (iv) contest the validity or enforceability of any provision contained in this Section 2.1(a), including this Section 2.1(a)(iv); (v) take any action that would reasonably be expected to require the Company to make a public announcement regarding the possibility of a transaction or any other matter described in this Section 2.1(a); or (vi) enter into any discussions, negotiations, agreements, arrangements or understandings with any Person with respect to any action Spectrum is prohibited from taking pursuant to this Section 2.1(a), or advise, assist, knowingly encourage or seek to persuade any Person to take any action or make any public statement with respect to any such action, or otherwise take or cause any action or make any public statement inconsistent with any of the foregoing. Notwithstanding the foregoing, nothing contained in this Section 2.1(a) shall limit Spectrum’s contractual rights under the Acquisition Agreement or the Battery Agreement. Additionally, nothing contained in this Agreement shall be construed to restrict Spectrum’s ability to comply with its disclosure obligations under the U.S. federal securities laws, including, but not limited to, Section 13 of the Exchange Act and the regulations promulgated thereunder, and any SEC filing made by or on behalf of Spectrum in order to comply with its obligations under the U.S. federal securities laws shall not be deemed, in and of itself, to be a breach of this Section 2.1(a). (b) At each annual and special meeting of the shareholders of the Company (or at any adjournment or postponement thereof) held, or in any other circumstances upon which a vote, consent or other approval (including by written consent) is sought by or from the shareholders of the Company, in any case during the period beginning on the date hereof and ending upon the earlier of the date of the closing of the transactions contemplated by the Battery Agreement (if such date ever occurs) and the date that is eighteen (18) months from the date hereof (the “Initial Voting Period”), Spectrum agrees that it and its applicable Affiliates shall (i) appear and be present, in person or by proxy, at such shareholders’ meeting or otherwise cause all shares of Voting Securities beneficially owned by it and its respective Affiliates to be counted as present for purposes of establishing a quorum and (ii) vote or consent, or cause to be voted or consented, all shares of Voting Securities beneficially owned by it and its respective Affiliates in proportion to the votes cast by the other shareholders of the Company on such matter. From the date of this Agreement and through the Initial Voting Period, Spectrum shall, and shall cause its applicable Affiliates to, upon the written request of the Company, grant an irrevocable proxy, which shall be deemed coupled with an interest sufficient in law to support an irrevocable proxy to the Company or its designees, to vote any shares of Equity Securities beneficially owned by it and its respective Affiliates in accordance with the terms and conditions set forth in this Section 2.1(b). (c) At each annual and special meeting of the shareholders of the Company (or at any adjournment or postponement thereof) held, or in any other circumstances upon which a vote, consent or other approval (including by written consent) is sought by or from the shareholders of the Company, in any case during the period commencing as of, and only upon the occurrence of, the expiration of the Initial Voting Period and ending eighteen (18) months from the date hereof (the “Voting Period”), Spectrum agrees that it and its applicable Affiliates shall (i) appear and be present, in person or by proxy, at such shareholders’ meeting or otherwise cause all shares of Voting Securities beneficially owned by it and its respective Affiliates to be counted as present for purposes of establishing a quorum, (ii) vote or consent, or cause to be voted or consented, all shares of Voting Securities beneficially owned by it and its respective Affiliates on the Company’s proxy card, voting instruction or consent form (a) in favor of each of the Directors nominated by the Board and recommended by the Board in the election of Directors, (b) against any other nominees to serve on the Board that have not been recommended by the Board, and (c) with respect to all other matters in accordance with the Board’s recommendations as identified in the Company’s proxy or information statement, including in favor of all other matters recommended for shareholder approval by the Board, and (iii) not execute any proxy card, voting instruction or consent form in respect of such shareholders’ meeting or other vote, consent or approval, other than the proxy card and related voting instruction form or consent form being solicited by or on behalf of the Board. From the date of this Agreement and through the Voting Period, Spectrum shall, and shall cause its applicable Affiliates to, upon the written request of the Company, grant an irrevocable proxy, which shall be deemed coupled with an interest sufficient in law to support an irrevocable proxy to the Company or its designees, to vote any shares of Equity Securities beneficially owned by it and its respective Affiliates in accordance with the terms and conditions set forth in this Section 2.1(c). (d) During the Voting Period, if either Spectrum or the Company enter into a definitive agreement to acquire any entity, assets or business and either Spectrum or the Company (as applicable) are advised by legal counsel that such acquisition would raise regulatory or antitrust concerns in light of Spectrum’s ownership of Equity Securities, the obligations of Spectrum and its Affiliates with respect to the voting of Voting Securities shall be those set forth in Section 2.1(b) until the earlier of (i) the confirmation by such legal counsel that such regulatory or antitrust concerns are no longer pending (such event, the “Regulatory Confirmation”) and (ii) the expiration of the Voting Period. Following the occurrence of the Regulatory Confirmation, the obligations of Spectrum and its Affiliates with respect to the voting of Voting Securities shall be those set forth in Section 2.1(c) until the expiration of the Voting Period.