Common use of Strategic Transactions Committee Matters Clause in Contracts

Strategic Transactions Committee Matters. 1. As of the date of this Agreement, the Strategic Transactions Committee of the Board is comprised of six (6) directors, which includes Messrs. Xxxxxxxxxxxx, Xxxxx and Xxxx as members of the Strategic Transaction Committee, together with existing members, Xxxx Xxxxxxxx (chair), Xxxx Xxxxx-Xxxxxxx and Xxxxxx Xxxxxxxxxx. If the Icahn Group has the right to designate four (4) or three (3) members of the Board, the Strategic Transactions Committee shall include three (3) Icahn Designees; provided, however, (x) if the Icahn Group only has the right to designate two (2) members of the Board, the Strategic Transactions Committee shall only include two (2) Icahn Designees, and (y) if the Icahn Group has no right to designate any members of the Board, the Strategic Transactions Committee shall include no Icahn Designees. Decisions by the Strategic Transactions Committee shall be determined by a vote of the majority of the full committee (“STC Requisite Approval”). Three members of the Strategic Transactions Committee shall constitute a quorum; provided, however, that each member of the Strategic Transactions Committee shall receive no less than twenty-four (24) hours prior written notice of any meeting. Attendance by a committee member at a Strategic Transactions Committee meeting shall be deemed a waiver of notice by that committee member. 2. The Strategic Transactions Committee shall (i) continue to pursue the matters delegated to it by the Board and the Strategic Transaction Committee’s authority and (ii) also include (A) the governance arrangements involving defensive provisions in the organizational documents of Centuri (this subclause (ii)(A), the “Governance Arrangements”) and (B) the composition of the board of directors of Centuri (the “Centuri Board”), in connection with a potential tax free spinoff of Centuri (the “Centuri Spinoff”). In the event only three members of the Strategic Transactions Committee vote affirmatively to approve a matter (a “Deadlock”) in respect of the Governance Arrangements, the Governance Arrangements shall be decided by a majority of the Board. Except with the unanimous approval of the full Board, no current or former members of the Board (including, for the avoidance of doubt, all Icahn Designees including Xx. Xxxx), an employee, consultant, Affiliate or Associate of any member of the Icahn Group (each, an “Icahn Restricted Person”) or any employee of the Company (other than the CEO of Centuri) shall be appointed to the Centuri Board in connection with the Centuri Spinoff. If a majority of the Board (but not all members of the Board) desires to appoint any Centuri Advisory Board member to the Centuri Board in connection with the Centuri Spinoff, then (A) the number of seats on the Centuri Board shall be equal to or greater than a number determined by (i) (x) the number of Centuri Advisory Board members, multiplied by (y) two (2), minus (ii) one (1), (B) the number of seats on the Centuri Board that are not held by Centuri Advisory Board members shall be equal to or greater than a number determined by (i) the number of Centuri Advisory Board members, minus (ii) one (1), and (C) the members of the Centuri Board shall be appointed by a majority of the Board. 3. In the event that the Strategic Transactions Committee approves any separation of the Company’s businesses into two or more independent, publicly traded companies, which may include spinning off one or more of the Company’s natural gas distributions business, the Centuri Spinoff and/or the Company’s pipeline and storage business, consisting of one or more spun-off entities (each, a “SpinCo”) (such transaction, a “Spinoff”), then, until the earlier of (i) termination of this Agreement, and (ii) such time as the Icahn Group, together with the Icahn Affiliates, beneficially owns an aggregate Net Long Position of a number of Common Shares that is less than 50% of the Tender Offer Closing Amount, the Company and the Icahn Group agree that: a. each SpinCo formed in connection with any such Spinoff shall be a corporation incorporated under the laws of the State of Delaware; b. each member of the board of directors of each SpinCo (each, a “SpinCo Board”) will be annually elected for a one-year term (i.e., not a “staggered” board); c. each such SpinCo will schedule its first annual meeting of stockholders following its Spinoff no earlier than the nine-month anniversary of the consummation of its Spinoff and no later than the twelve-month anniversary of the consummation of the Spinoff; provided that if such twelve-month anniversary occurs within the 90-day period immediately following a fiscal year end, then this deadline will be extended until 135 days after that fiscal year end; and d. in the event that the Company determines to consummate a Spinoff, then the Company or its applicable subsidiary shall distribute to the Icahn Group, in the aggregate, its pro rata portion (calculated as of the record date for such distribution by dividing the number of Common Shares owned by the Icahn Group by the number of Common Shares then outstanding) of such equity interests in SpinCo being distributed to the stockholders of the Company in connection with the consummation of such Spinoff. 4. Any divestiture by the Company shall be subject to STC Requisite Approval; provided, however, that, in the event a Deadlock in respect of such divestiture, such divestiture shall be decided by a majority of the Board (and, for the avoidance of doubt, shall not require a stockholder vote unless otherwise required by law or any applicable stock exchange requirements). 5. Without the STC Requisite Approval, the Company shall not acquire any equity interests in or assets of any Person (x) if the purchase price of such acquisition exceeds $500,000,000 individually or (y) if the purchase price of such acquisition (together with the purchase price of all other acquisitions by the Company during the trailing twelve (12) month period but excluding any acquisition prior to the date of this Agreement) would exceed $1,000,000,000 in the aggregate (collectively, the “Acquisition Threshold”); provided, however, that, in the event of a Deadlock in respect of such acquisition, (x) such acquisition shall be decided upon by a majority of the Board and (y) if the Board approves such acquisition, then such acquisition shall be subject to the approval of the Company’s stockholders holding at least a majority of the votes cast at a meeting of stockholders. 6. All acquisitions by the Company that are below the Acquisition Threshold shall not be subject to review by the Strategic Transactions Committee and shall be determined by a majority of the Board (and, for the avoidance of doubt, shall not require a stockholder vote unless otherwise required by law or any applicable stock exchange requirements). 7. Except in connection with ordinary course issuances under the Company’s equity plans, the Company’s ATM program (as it may be amended or replaced, from time to time, with a new ATM program that provides for issuances in the ordinary course and consistent in terms of the number of securities issued thereunder with past practices and the Company’s current ATM program) or issuances in connection with acquisitions in accordance with Section 1(a)(vi)(5) and Section 1(a)(vi)(6), without the STC Requisite Approval, the Company shall not commence a primary offering of Common Shares or any debt or equity securities that are convertible or exchangeable in whole or in part for Common Shares (in any single offering or series of related offerings to any person or any group of affiliated or related persons) at a price per Common Share (or the conversion or exchange price, if applicable, that results in a price per Common Share) less than the five (5) day volume weighted average price on the close of business of the last trading day before such issuance, in which the net proceeds of such offering are expected to be greater than $50,000,000; provided, however, that, in the event of a Deadlock in respect of such offering, if the Company offers to sell to the Icahn Group, in the aggregate, its pro rata portion (calculated by dividing the number of Common Shares, on an as-converted basis for any issuances of convertible or exchangeable securities, owned by the Icahn Group by the number of Common Shares then outstanding on an as-converted basis for any issuances of convertible or exchangeable securities) of such Common Shares being sold in such offering at the offer price and on the offer terms, subject to the Company obtaining (which the Company shall use reasonable best efforts to obtain) any approvals required by the rules applicable to listed companies of the New York Stock Exchange or the rules and regulations of any other national securities exchange on which the Common Shares are then listed, then the Company shall be permitted to undertake and complete such offering. The Company agrees that it will not make multiple issuances below $50,000,000 to the same party.

Strategic Transactions Committee Matters. 1. As of Promptly after the date of this Agreement, and effective upon their appointment to the Board, the Board shall increase the size of the Strategic Transactions Committee of the Board is comprised of by three (3) seats to six (6) directors, which includes and shall appoint Messrs. Xxxxxxxxxxxx, Xxxxx and Xxxx Frisby as members of the Strategic Transaction Committee, together with existing members, Xxxx Xxxxxxxx (chair), Xxxx Xxxxx-Xxxxxxx and Xxxxxx Xxxxxxxxxx. If the Icahn Group has the right to designate four (4) or three (3) members of the Board, the Strategic Transactions Committee shall include three (3) Icahn Designees; provided, however, (x) if the Icahn Group only has the right to designate two (2) members of the Board, the Strategic Transactions Committee shall only include two (2) Icahn Designees, and (y) if the Icahn Group has no right to designate any members of the Board, the Strategic Transactions Committee shall include no Icahn Designees. If Xx. Xxxx is appointed to the Board, the Icahn Group may cause one of the Icahn Designees on the Strategic Transactions Committee to resign therefrom and, upon the request of the Icahn Group, the Board shall appoint Xx. Xxxx as a member of the Strategic Transactions Committee to fill the resulting vacancy. Decisions by the Strategic Transactions Committee shall be determined by a vote of the majority of the full committee (“STC Requisite Approval”). Three members of the Strategic Transactions Committee shall constitute a quorum; provided, however, that each member of the Strategic Transactions Committee shall receive no less than twenty-four (24) hours prior written notice of any meeting. Attendance by a committee member at a Strategic Transactions Committee meeting shall be deemed a waiver of notice by that committee member. 2. The Strategic Transactions Committee shall (i) continue to pursue the matters delegated to it by the Board and the Strategic Transaction Committee’s authority and (ii) also include (A) the governance arrangements involving defensive provisions in the organizational documents of Centuri (this subclause (ii)(A), the “Governance Arrangements”) and (B) the composition of the board of directors of Centuri (the “Centuri Board”), in connection with a potential tax free spinoff of Centuri (the “Centuri Spinoff”). In the event only three members of the Strategic Transactions Committee vote affirmatively to approve a matter (a “Deadlock”) in respect of the Governance Arrangements, the Governance Arrangements shall be decided by a majority of the Board. Except with the unanimous approval of the full Board, no current or former members of the Board (including, for the avoidance of doubt, all Icahn Designees including Xx. Xxxx), an employee, consultant, Affiliate or Associate of any member of the Icahn Group (each, an “Icahn Restricted Person”) or any employee of the Company (other than the CEO of Centuri) shall be appointed to the Centuri Board in connection with the Centuri Spinoff. If a majority of the Board (but not all members of the Board) desires to appoint any Centuri Advisory Board member to the Centuri Board in connection with the Centuri Spinoff, then (A) the number of seats on the Centuri Board shall be equal to or greater than a number determined by (i) (x) the number of Centuri Advisory Board members, multiplied by (y) two (2), minus (ii) one (1), (B) the number of seats on the Centuri Board that are not held by Centuri Advisory Board members shall be equal to or greater than a number determined by (i) the number of Centuri Advisory Board members, minus (ii) one (1), and (C) the members of the Centuri Board shall be appointed by a majority of the Board. 3. In the event that the Strategic Transactions Committee approves any separation of the Company’s businesses into two or more independent, publicly traded companies, which may include spinning off one or more of the Company’s natural gas distributions business, the Centuri Spinoff and/or the Company’s pipeline and storage business, consisting of one or more spun-off entities (each, a “SpinCo”) (such transaction, a “Spinoff”), then, until the earlier of (i) termination of this Agreement, and (ii) such time as the Icahn Group, together with the Icahn Affiliates, beneficially owns an aggregate Net Long Position of a number of Common Shares that is less than 50% of the Tender Offer Closing Amount, the Company and the Icahn Group agree that: a. each SpinCo formed in connection with any such Spinoff shall be a corporation incorporated under the laws of the State of Delaware; b. each member of the board of directors of each SpinCo (each, a “SpinCo Board”) will be annually elected for a one-year term (i.e., not a “staggered” board); c. each such SpinCo will schedule its first annual meeting of stockholders following its Spinoff no earlier than the nine-month anniversary of the consummation of its Spinoff and no later than the twelve-month anniversary of the consummation of the Spinoff; provided that if such twelve-month anniversary occurs within the 90-day period immediately following a fiscal year end, then this deadline will be extended until 135 days after that fiscal year end; and d. in the event that the Company determines to consummate a Spinoff, then the Company or its applicable subsidiary shall distribute to the Icahn Group, in the aggregate, its pro rata portion (calculated as of the record date for such distribution by dividing the number of Common Shares owned by the Icahn Group by the number of Common Shares then outstanding) of such equity interests in SpinCo being distributed to the stockholders of the Company in connection with the consummation of such Spinoff. 4. Any divestiture by the Company (including a Transaction Event) shall be subject to STC Requisite Approval; provided, however, that, in the event of a Deadlock in respect of such divestiture, such divestiture shall be decided by a majority of the Board (and, for the avoidance of doubt, other than with respect to a Transaction Event, shall not require a stockholder vote unless otherwise required by law or any applicable stock exchange requirements). 54. Without the STC Requisite Approval, the Company shall not acquire any equity interests in or assets of any Person (x) if the purchase price of such acquisition exceeds $500,000,000 individually or (y) if the purchase price of such acquisition (together with the purchase price of all other acquisitions by the Company during the trailing twelve (12) month period but excluding any acquisition prior to the date of this Agreement) would exceed $1,000,000,000 in the aggregate (collectively, the “Acquisition Threshold”); provided, however, that, in the event of a Deadlock in respect of such acquisition, (x) such acquisition shall be decided upon by a majority of the Board and (y) if the Board approves such acquisition, then such acquisition shall be subject to the approval of the Company’s stockholders holding at least a majority of the votes cast at a meeting of stockholders. 65. All acquisitions by the Company that are below the Acquisition Threshold shall not be subject to review by the Strategic Transactions Committee and shall be determined by a majority of the Board (and, for the avoidance of doubt, shall not require a stockholder vote unless otherwise required by law or any applicable stock exchange requirements). 76. Except in connection with ordinary course issuances under the Company’s equity plans, the Company’s ATM program (as it may be amended or replaced, from time to time, with a new ATM program that provides for issuances in the ordinary course and consistent in terms of the number of securities issued thereunder with past practices and the Company’s current ATM program) or issuances in connection with acquisitions in accordance with Section 1(a)(vi)(51(a)(x)(4) and Section 1(a)(vi)(61(a)(x)(5), without the STC Requisite Approval, the Company shall not commence a primary offering of Common Shares or any debt or equity securities that are convertible or exchangeable in whole or in part for Common Shares (in any single offering or series of related offerings to any person or any group of affiliated or related persons) at a price per Common Share (or the conversion or exchange price, if applicable, that results in a price per Common Share) less than the five (5) day volume weighted average price on the close of business of the last trading day before such issuance, in which the net proceeds of such offering are expected to be greater than $50,000,000; provided, however, that, in the event of a Deadlock in respect of such offering, if the Company offers to sell to the Icahn Group, in the aggregate, its pro rata portion (calculated by dividing the number of Common Shares, on an as-converted basis for any issuances of convertible or exchangeable securities, owned by the Icahn Group by the number of Common Shares then outstanding on an as-converted basis for any issuances of convertible or exchangeable securities) of such Common Shares being sold in such offering at the offer price and on the offer terms, subject to the Company obtaining (which the Company shall use reasonable best efforts to obtain) any approvals required by the rules applicable to listed companies of the New York Stock Exchange or the rules and regulations of any other national securities exchange on which the Common Shares are then listed, then the Company shall be permitted to undertake and complete such offering. The Company agrees that it will not make multiple issuances below $50,000,000 to the same party.

Strategic Transactions Committee Matters. 1. As of the date of this Agreement, the Strategic Transactions Committee of the Board is comprised of six (6) directors, which includes Messrs. Xxxxxxxxxxxx, Xxxxx and Xxxx as members of the Strategic Transaction Committee, together with existing members, Xxxx Xxxxxxxx (chair), Xxxx Xxxxx-Xxxxxxx and Xxxxxx Xxxxxxxxxx. If the Icahn Group has the right to designate four (4) or three (3) members of the Board, the Strategic Transactions Committee shall include three (3) Icahn Designees; provided, however, (x) if the Icahn Group only has the right to designate two (2) members of the Board, the Strategic Transactions Committee shall only include two (2) Icahn Designees, and (y) if the Icahn Group has no right to designate any members of the Board, the Strategic Transactions Committee shall include no Icahn Designees. Decisions by the Strategic Transactions Committee shall be determined by a vote of the majority of the full committee (“STC Requisite Approval”). Three members of the Strategic Transactions Committee shall constitute a quorum; provided, however, that each member of the Strategic Transactions Committee shall receive no less than twenty-four (24) hours prior written notice of any meeting. Attendance by a committee member at a Strategic Transactions Committee meeting shall be deemed a waiver of notice by that committee member. 2. The Strategic Transactions Committee shall (i) continue to pursue the matters delegated to it by the Board and the Strategic Transaction Committee’s authority and (ii) also include (A) the governance arrangements involving defensive provisions in the organizational documents of Centuri (this subclause (ii)(A), the “Governance Arrangements”) and (B) the composition of the board of directors of Centuri (the “Centuri Board”), in connection with a potential tax free spinoff of Centuri (the “Centuri Spinoff”). In the event only three (3) members of the Strategic Transactions Committee vote affirmatively to approve a matter (a “Deadlock”) in respect of the Governance Arrangements, the Governance Arrangements shall be decided by a majority of the Board. Except with the unanimous approval of the full Board, no current or former members of the Board (including, for the avoidance of doubt, all Icahn Designees including Xx. Xxxx), an employee, consultant, Affiliate or Associate of any member of the Icahn Group (each, an “Icahn Restricted Person”) or any employee of the Company (other than the CEO of Centuri) shall be appointed to the Centuri Board in connection with the Centuri Spinoff. If a majority of the Board (but not all members of the Board) desires to appoint any Centuri Advisory Board member to the Centuri Board in connection with the Centuri Spinoff, then (A) the number of seats on the Centuri Board shall be equal to or greater than a number determined by (i) (x) the number of Centuri Advisory Board members, multiplied by (y) two (2), minus (ii) one (1), (B) the number of seats on the Centuri Board that are not held by Centuri Advisory Board members shall be equal to or greater than a number determined by (i) the number of Centuri Advisory Board members, minus (ii) one (1), and (C) the members of the Centuri Board shall be appointed by a majority of the Board. 3. In the event that the Strategic Transactions Committee approves any separation of the Company’s businesses into two or more independent, publicly traded companies, which may include spinning off one or more of the Company’s natural gas distributions business, the Centuri Spinoff and/or the Company’s pipeline and storage business, consisting of one or more spun-off entities (each, a “SpinCo”) (such transaction, a “Spinoff”), then, until the earlier of (i) termination of this Agreement, and (ii) such time as the Icahn Group, together with the Icahn Affiliates, beneficially owns an aggregate Net Long Position of a number of Common Shares that is less than 50% of the Tender Offer Closing Amount, the Company and the Icahn Group agree that: a. each SpinCo formed in connection with any such Spinoff shall be a corporation incorporated under the laws of the State of Delaware; b. each member of the board of directors of each SpinCo (each, a “SpinCo Board”) will be annually elected for a one-year term (i.e., not a “staggered” board); c. each such SpinCo will schedule its first annual meeting of stockholders following its Spinoff no earlier than the nine-month anniversary of the consummation of its Spinoff and no later than the twelve-month anniversary of the consummation of the Spinoff; provided that if such twelve-month anniversary occurs within the 90-day period immediately following a fiscal year end, then this deadline will be extended until 135 days after that fiscal year end; and d. in the event that the Company determines to consummate a Spinoff, then the Company or its applicable subsidiary shall distribute to the Icahn Group, in the aggregate, its pro rata portion (calculated as of the record date for such distribution by dividing the number of Common Shares owned by the Icahn Group by the number of Common Shares then outstanding) of such equity interests in SpinCo being distributed to the stockholders of the Company in connection with the consummation of such Spinoff. 4. Any divestiture by the Company shall be subject to STC Requisite Approval; provided, however, that, in the event a Deadlock in respect of such divestiture, such divestiture shall be decided by a majority of the Board (and, for the avoidance of doubt, shall not require a stockholder vote unless otherwise required by law or any applicable stock exchange requirements). 5. Without the STC Requisite Approval, the Company shall not acquire any equity interests in or assets of any Person (x) if the purchase price of such acquisition exceeds $500,000,000 individually or (y) if the purchase price of such acquisition (together with the purchase price of all other acquisitions by the Company during the trailing twelve (12) month period but excluding any acquisition prior to the date of this Agreement) would exceed $1,000,000,000 in the aggregate (collectively, the “Acquisition Threshold”); provided, however, that, in the event of a Deadlock in respect of such acquisition, (x) such acquisition shall be decided upon by a majority of the Board and (y) if the Board approves such acquisition, then such acquisition shall be subject to the approval of the Company’s stockholders holding at least a majority of the votes cast at a meeting of stockholders. 6. All acquisitions by the Company that are below the Acquisition Threshold shall not be subject to review by the Strategic Transactions Committee and shall be determined by a majority of the Board (and, for the avoidance of doubt, shall not require a stockholder vote unless otherwise required by law or any applicable stock exchange requirements). 7. Except in connection with ordinary course issuances under the Company’s equity plans, the Company’s ATM program (as it may be amended or replaced, from time to time, with a new ATM program that provides for issuances in the ordinary course and consistent in terms of the number of securities issued thereunder with past practices and the Company’s current ATM program) or issuances in connection with acquisitions in accordance with Section 1(a)(vi)(5) and Section 1(a)(vi)(6), without the STC Requisite Approval, the Company shall not commence a primary offering of Common Shares or any debt or equity securities that are convertible or exchangeable in whole or in part for Common Shares (in any single offering or series of related offerings to any person or any group of affiliated or related persons) at a price per Common Share (or the conversion or exchange price, if applicable, that results in a price per Common Share) less than the five (5) day volume weighted average price on the close of business of the last trading day before such issuance, in which the net proceeds of such offering are expected to be greater than $50,000,000; provided, however, that, in the event of a Deadlock in respect of such offering, if the Company offers to sell to the Icahn Group, in the aggregate, its pro rata portion (calculated by dividing the number of Common Shares, on an as-converted basis for any issuances of convertible or exchangeable securities, owned by the Icahn Group by the number of Common Shares then outstanding on an as-converted basis for any issuances of convertible or exchangeable securities) of such Common Shares being sold in such offering at the offer price and on the offer terms, subject to the Company obtaining (which the Company shall use reasonable best efforts to obtain) any approvals required by the rules applicable to listed companies of the New York Stock Exchange or the rules and regulations of any other national securities exchange on which the Common Shares are then listed, then the Company shall be permitted to undertake and complete such offering. The Company agrees that it will not make multiple issuances below $50,000,000 to the same party.