Certain Other Matters. (a) For purposes of this Agreement, the “Standstill Period” shall mean the period from the date of this Agreement until 12:01 a.m., Eastern time, on the 30th day prior to the advance notice deadline for making director nominations at the 2017 Annual Meeting. (b) During the Standstill Period, no member of ▇▇▇▇▇▇▇ Capital shall, directly or indirectly, and each member of ▇▇▇▇▇▇▇ Capital shall cause each ▇▇▇▇▇▇▇ Capital Affiliate (as defined herein) not to, and shall use its reasonable best efforts to cause each of its Associates not to, directly or indirectly (it being understood and agreed that the following restrictions shall not apply to the New Directors (and any Replacement) acting in their capacities as a director of the Company): (i) acquire or cause to be acquired Beneficial Ownership of any Voting Securities (as defined herein) (for purposes of this calculation, including any Synthetic Positions) such that immediately following such purchase ▇▇▇▇▇▇▇ Capital and the ▇▇▇▇▇▇▇ Capital Affiliates would collectively Beneficially Own (for purposes of this calculation, including any Synthetic Positions as Beneficial Ownership of the associated Voting Securities) more than twelve and one-half percent (12.5%) of the Company’s issued and outstanding Voting Securities; (ii) solicit proxies or written consents of stockholders or conduct any other type of referendum (binding or non-binding) with respect to, or from the holders of, the Voting Securities, or become a “participant” (as such term is defined in Instruction 3 to Item 4 of Schedule 14A promulgated under the Securities Exchange Act of 1934, as amended (the “Exchange Act”)), in or assist any Person (as defined herein) not a party to this Agreement (a “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 the Voting Securities (other than such encouragement, advice or influence that is consistent with Company management’s recommendation in connection with such matter); (iii) encourage, advise or influence any other Person or assist any Third Party in so encouraging, assisting or influencing any 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 Company’s recommendation in connection with such matter); (iv) form or join in a partnership, limited partnership, syndicate or other group, including a “group” as defined under Section 13(d) of the Exchange Act, with respect to the Voting Securities (for the avoidance of doubt, excluding any group composed solely of ▇▇▇▇▇▇▇ Capital and the ▇▇▇▇▇▇▇ Capital Affiliates); (v) present at any annual meeting or any special meeting of the Company’s stockholders any proposal for consideration for action by stockholders or seek the removal of any member of the Board or (except as expressly permitted in this Agreement with respect to a Replacement) propose any nominee for election to the Board or seek representation on the Board; (vi) make any request for stockholders list materials or other books and records of the Company under Section 220 of the Delaware General Corporation Law or otherwise; (vii) institute, solicit or join, as a party, any litigation, arbitration or other proceeding (including any derivative action) against the Company or any of its future, current or former directors or officers or employees; provided, that nothing shall prevent ▇▇▇▇▇▇▇ Capital from (A) bringing litigation to enforce the provisions of this Agreement, (B) making counterclaims with respect to any proceeding initiated by, or on behalf of, the Company against ▇▇▇▇▇▇▇ Capital, or (C) exercising statutory appraisal rights; provided, further, that the foregoing shall also not prevent ▇▇▇▇▇▇▇ Capital from responding to or complying with a validly issued legal process; (viii) enter into any negotiations, agreements, arrangements or understandings with any Third Party with respect to the matters set forth in this Section 2; or (ix) contest the validity of, or publicly request any waiver of, the obligations set forth in this Section 2(b). The restrictions set forth above in this Section 2(b) shall not apply for the duration of any period that the Company is not in material compliance with its obligations under Sections 1(a)-(f), Section 3 and Section 18 (after written notice of such material non-compliance has been provided to the Company and the Company has been given a reasonable opportunity to cure such material non-compliance; provided that such notice and opportunity to cure shall not apply in the case of material noncompliance with Sections 1(a), 1(b) or 1(e)). (c) Provided that the standstill obligations are in full force and effect, ▇▇▇▇▇▇▇ Capital together with all controlled Affiliates of the members of ▇▇▇▇▇▇▇ Capital (such controlled Affiliates, collectively and individually, the “▇▇▇▇▇▇▇ Capital Affiliates”) shall cause all Voting Securities owned by them directly or indirectly, whether owned of record or Beneficially Owned, as of the record date for the 2016 Annual Meeting, that are entitled to vote, to be present for quorum purposes and to be voted, (i) for all directors nominated by the Board for election at the 2016 Annual Meeting, and in favor of auditor ratification and “say-on-pay” proposals, and (ii) in accordance with the recommendation of the Board, provided that such recommendation is unanimous (of those voting) and includes the affirmative vote of the New Directors (and any Replacement), on any other proposals or other business that comes before such meeting (other than any proposals relating to mergers, acquisitions or other business combinations or extraordinary transactions, or any amendment to the Company’s organizational documents). (d) If at any time following the date of this Agreement, ▇▇▇▇▇▇▇ Capital’s aggregate Net Long Position in the Common Shares is less than 5% of the outstanding Common Shares (the “Minimum Ownership Level”), (i) ▇▇▇▇▇▇▇ Capital shall lose its right to identify an Initial New Director and a Replacement, (ii) the Company shall not be obligated to appoint the Subsequent New Director, (iii) the Company shall not be obligated to nominate the Initial New Director (or any Replacement) and/or the Subsequent New Director for election to the Board at any meeting of stockholders at which directors are to be elected occurring after the time at which ▇▇▇▇▇▇▇ Capital no longer satisfies the Minimum Ownership Level, (iv) the restrictions regarding the size of the Board shall no longer be applicable, and (v) the Board may choose to remove the Initial New Director (or any Replacement) from the Nomination and Governance Committee. Notwithstanding anything to the contrary contained herein, the parties agree that even if ▇▇▇▇▇▇▇ Capital’s Net Long Position is less than the Minimum Ownership Level, neither the Initial New Director, the Subsequent New Director or any Replacement shall be required to resign from the Board. (e) For purposes of Section 2(b)(i) and Section 2(d) above, the parties shall determine the amount of outstanding Common Shares in accordance with Section 13d-1 of the Exchange Act.
Appears in 2 contracts
Sources: Board Agreement (Carlson Capital L P), Agreement (Vitamin Shoppe, Inc.)
Certain Other Matters. (a) For purposes of this Agreement, the “Standstill Period” shall mean the period from the date of this Agreement until 12:01 a.m., Eastern time, on the 30th day prior to the advance notice deadline for making director nominations at the 2017 2018 Annual Meeting.
(b) During the Standstill Period, no member of ▇▇▇▇▇▇▇ Capital shall, directly or indirectly, and each member of ▇▇▇▇▇▇▇ Capital shall cause each ▇▇▇▇▇▇▇ Capital Affiliate (as defined herein) not to, and shall use its reasonable best efforts to cause each of its Associates not to, directly or indirectly (it being understood and agreed that the following restrictions shall not apply to the New Directors (and any Replacement) acting in their capacities as a director of the Company):
(i) acquire or cause to be acquired Beneficial Ownership of any Voting Securities (as defined herein) (for purposes of this calculation, including any Synthetic Positions) such that immediately following such purchase ▇▇▇▇▇▇▇ Capital and the ▇▇▇▇▇▇▇ Capital Affiliates would collectively Beneficially Own (for purposes of this calculation, including any Synthetic Positions as Beneficial Ownership of the associated Voting Securities) more than twelve and one-half percent fifteen (12.515%) of the Company’s issued and outstanding Voting Securities;
(ii) solicit proxies or written consents of stockholders or conduct any other type of referendum (binding or non-binding) with respect to, or from the holders of, the Voting Securities, or become a “participant” (as such term is defined in Instruction 3 to Item 4 of Schedule 14A promulgated under the Securities Exchange Act of 1934, as amended (the “Exchange Act”)), in or assist any Person (as defined herein) not a party to this Agreement (a “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 the Voting Securities (other than such encouragement, advice or influence that is consistent with Company management’s recommendation in connection with such matter);
(iii) encourage, advise or influence any other Person or assist any Third Party in so encouraging, assisting or influencing any 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 Company’s recommendation in connection with such matter);
(iv) form or join in a partnership, limited partnership, syndicate or other group, including a “group” as defined under Section 13(d) of the Exchange Act, with respect to the Voting Securities (for the avoidance of doubt, excluding any group composed solely of ▇▇▇▇▇▇▇ Capital and the ▇▇▇▇▇▇▇ Capital Affiliates);
(v) present at any annual meeting or any special meeting of the Company’s stockholders any proposal for consideration for action by stockholders or seek the removal of any member of the Board or (except as expressly permitted in this Agreement with respect to a Replacement) propose any nominee for election to the Board or seek representation on the Board;
(vi) make any request for stockholders list materials or other books and records of the Company under Section 220 of the Delaware General Corporation Law or otherwise;
(vii) institute, solicit or join, as a party, any litigation, arbitration or other proceeding (including any derivative action) against the Company or any of its future, current or former directors or officers or employees; provided, that nothing shall prevent ▇▇▇▇▇▇▇ Capital from (A) bringing litigation to enforce the provisions of this Agreement, (B) making counterclaims with respect to any proceeding initiated by, or on behalf of, the Company against ▇▇▇▇▇▇▇ Capital, or (C) exercising statutory appraisal rights; provided, further, that the foregoing shall also not prevent ▇▇▇▇▇▇▇ Capital from responding to or complying with a validly issued legal process;
(viii) make any public recommendation or other public statement with respect to mergers, acquisitions or other business combinations or extraordinary transactions involving the Company (“Extraordinary Transactions”) or solicit any third party to make an offer or proposal with respect to any Extraordinary Transaction;
(ix) enter into any negotiations, agreements, arrangements or understandings with any Third Party with respect to the matters set forth in this Section 2; or
(ixx) contest the validity of, or publicly request any waiver of, the obligations set forth in this Section 2(b). The restrictions set forth above in this Section 2(b) shall not apply for the duration of any period that the Company is not in material compliance with its obligations under Sections 1(a)-(f), Section 3 ) and 1(i) and Section 18 17 (after written notice of such material non-compliance has been provided to the Company and the Company has been given a reasonable opportunity to cure such material non-compliance; provided that such notice and opportunity to cure shall not apply in the case of material noncompliance with Sections 1(a), 1(b) ), 1(e), or 1(e1(i)).
(c) Provided that the standstill obligations are in full force and effect, ▇▇▇▇▇▇▇ Capital together with all controlled Affiliates of the members of ▇▇▇▇▇▇▇ Capital (such controlled Affiliates, collectively and individually, the “▇▇▇▇▇▇▇ Capital Affiliates”) shall cause all Voting Securities owned by them directly or indirectly, whether owned of record or Beneficially Owned, as of the record date for the 2016 2017 Annual Meeting, that are entitled to vote, to be present for quorum purposes and to be voted, (i) for all directors nominated by the Board for election at the 2016 2017 Annual Meeting, and in favor of auditor ratification and “say-on-pay” proposals, and (ii) in accordance with the recommendation of the Board, provided that such recommendation is unanimous (of those voting) and includes the affirmative vote of the 2016 Director and the New Directors (and any Replacement), on any other proposals or other business that comes before such meeting (other than any proposals relating to mergers, acquisitions or other business combinations or extraordinary transactions, Extraordinary Transactions or any amendment to the Company’s organizational documents).
(d) If at any time following the date of this Agreement, ▇▇▇▇▇▇▇ Capital’s aggregate Net Long Position in the Common Shares is less than 5% of the outstanding Common Shares (the “Minimum Ownership Level”), (i) ▇▇▇▇▇▇▇ Capital shall lose its right to identify an Initial New Director and a Replacement, (ii) the Company shall not be obligated to appoint the Subsequent any New Director, (iii) the Company shall not be obligated to nominate the 2016 Director or the Initial New Director (or any respective Replacement) and/or the Subsequent New Director for election to the Board at any meeting of stockholders at which directors are to be elected occurring after the time at which ▇▇▇▇▇▇▇ Capital no longer satisfies the Minimum Ownership Level, (iv) the restrictions regarding the size of the Board shall no longer be applicable, and (v) the Board may choose to remove the Initial New 2016 Director (or any Replacement) from the Nomination and Governance Committee. Notwithstanding anything to the contrary contained herein, the parties agree that even if ▇▇▇▇▇▇▇ Capital’s Net Long Position is less than the Minimum Ownership Level, neither the Initial New Director, the Subsequent New Director or any Replacement shall be required to resign from the Board.
(e) For purposes of Section 2(b)(i) and Section 2(d) above, the parties shall determine the amount of outstanding Common Shares in accordance with Section 13d-1 of the Exchange Act.
Appears in 2 contracts
Sources: Board Governance Agreement (Vitamin Shoppe, Inc.), Agreement (Carlson Capital L P)
Certain Other Matters. (a) For purposes During the Term, if Twin Haven files a petition with the Public Utilities Commission of this Agreementthe State of Hawaii (the “PUC”), the “Standstill Period” Company will, no later than the due date for such letter established by the PUC, issue a letter in support of the PUC’s granting of permission for Twin Haven and its Affiliates to acquire up to 31.5% of the Company’s outstanding Voting Securities. Such letter of support shall mean the period from the date of this Agreement until 12:01 a.m., Eastern time, on the 30th day prior be in form reasonably acceptable to the advance notice deadline for making director nominations at the 2017 Annual MeetingTwin Haven.
(b) During The TH Designee shall be entitled to resign from the Standstill PeriodBoard at any time in his or her discretion; provided, no member however, Twin Haven agrees that during the Term, unless requested in writing in advance by the Board, none of ▇▇▇▇▇▇▇ Capital Twin Haven or any TH Affiliate shall, directly or indirectly, and each member of ▇▇▇▇▇▇▇ Capital shall cause each ▇▇▇▇▇▇▇ Capital Affiliate (as defined herein) not to, and shall use its reasonable best efforts to cause each of its Associates not to, directly or indirectly (it being understood and agreed that the following restrictions shall not apply to the New Directors TH Designee’s participation in Board and Board committee meetings (including votes on and any Replacementdiscussions regarding matters at such meetings) acting solely in their capacities such person’s capacity as a director of the Company):) do any of the following:
(i) acquire or cause seek to be acquired Beneficial Ownership of acquire any Voting Securities (as defined hereinincluding options, swaps, derivatives or convertibles or other similar instruments, whether real or synthetic) (for purposes of this calculationif, including any Synthetic Positions) immediately after such that immediately following such purchase ▇▇▇▇▇▇▇ Capital purchase, Twin Haven and the ▇▇▇▇▇▇▇ Capital TH Affiliates would collectively Beneficially Own (for purposes of this calculation, including any Synthetic Positions as Beneficial Ownership or control more than 31.5% of the associated Voting Securities) more than twelve and one-half percent (12.5%) of the Company’s issued and outstanding Voting Securities;
(ii) form, join or participate in a partnership, limited partnership, syndicate, arrangement, understanding or any “group” within the meaning of Section 13(d)(3) of the Exchange Act, or otherwise act in concert with any person in respect of the Company’s securities, other than a group consisting solely of members of Twin Haven and TH Affiliates disclosed in a public filing with the SEC on or prior to the date of this Agreement;
(iii) solicit proxies or written consents of stockholders or conduct any other type of referendum (binding or non-binding) with respect to, or from the holders of, the Voting Securities, or become a “participant” (as such term is defined in Instruction 3 to Item 4 of Schedule 14A promulgated under the Securities Exchange Act of 1934, as amended (the “Exchange Act”)), in or assist any Person (as defined herein) not a party to this Agreement (a “Third Party”) in any “solicitation” of any proxy, consent or other authority (as such terms are defined having the meanings given in Regulation 14A under the Exchange Act) to vote any shares of the Voting Securities (other than such encouragementSecurities, advice or influence that is consistent with Company management’s recommendation in connection with such matter);
(iii) encourage, advise or influence any other Person or assist any Third Party in so encouraging, assisting or influencing any Person person with respect to the “solicitation” of any proxy or 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 with respect to the Company or influence that is consistent with the Company’s recommendation in connection with such matter)its affairs;
(iv) form call or join in a partnershipseek to call any special meeting of Company stockholders, limited partnership, syndicate seek or request any list of holders of any Voting Securities or other groupCompany securities (other than, including solely for the purpose of complying with the following clause (vi), a “group” as defined under Section 13(d) list of holders of 3% or more of the Exchange ActCommon Stock), with respect to the Voting Securities (for the avoidance of doubt, excluding any group composed solely of ▇▇▇▇▇▇▇ Capital and the ▇▇▇▇▇▇▇ Capital Affiliates);
(v) present at any annual meeting or any special meeting of the Company’s stockholders or through action by written consent any proposal for consideration for action by stockholders the stockholders, or otherwise seek the removal of to advise or influence any member of the Board or (except as expressly permitted in this Agreement person with respect to a Replacement) propose the voting of any nominee for election of the Voting Securities, or engage in any conduct intended to cause stockholders to vote contrary to the Board or seek representation on recommendation of the Board;
(v) seek any change in composition of the Board (including proposing any nominee for election or removal of any director), except for the TH Designee or Replacement TH Designee;
(vi) make sell, offer or agree to sell, directly or indirectly, any request for stockholders list materials Company securities or underlying rights to any person (other than as described in the following proviso) that would knowingly (after due inquiry) result in such person and its Affiliates collectively Beneficially Owning or controlling 5% or more of the Common Stock outstanding at such time or would increase the Beneficial or other books and records ownership interest of any person that (together with its Affiliates) already has a Beneficial or other ownership interest of 5% or more of the Common Stock; provided, the foregoing will not restrict the sale by Twin Haven of Company securities or underlying rights (A) to one person where such sale knowingly (after due inquiry) results in such one person and its Affiliates collectively Beneficially Owning or controlling up to 9.99% of the Common Stock outstanding at such time, in each case so long as such disposition would not, in the good faith judgment of Twin Haven after consultation with the Company, reasonably be likely to result in an impairment of the Company’s net operating losses under Section 220 382 of the Delaware General Corporation Law Internal Revenue Code of 1986, as amended (it being understood and agreed that all sales permitted to be made during the Term under this clause (A) shall be to the same one person), or otherwiseapplicable state law or (B) in response to a tender offer made by a person not Affiliated with Twin Haven and which tender offer is recommended by the Board to the Company’s stockholders as set forth on a Schedule 14D-9 filed with the SEC (it being understood and agreed that Twin Haven shall have no obligation to investigate or inquire as to the shareholdings of any counterparty to any open market sales (provided, after due inquiry, Twin Haven is not aware of the identity of the counterparty to such trade at the time of the trade) or underwritten sales, and the limitation on sales provided in this paragraph shall not apply to sales to one or more underwriters as part of a bona fide underwritten public offering);
(vii) grant any proxy, consent or other authority to vote any Voting Securities with respect to any matters (other than to the named proxies included in the Company’s proxy card for any annual meeting or special meeting of stockholders) or deposit any Voting Securities of the Company in a voting trust or, except as set forth in Section 3(c) below, subject them to a voting agreement or other arrangement of similar effect with respect to any annual meeting, special meeting of stockholders or action by written consent (excluding customary brokerage accounts, margin accounts, prime brokerage accounts and the like);
(viii) arrange or participate in any financing for the purchase by any person (other than Twin Haven and the TH Affiliates to the extent expressly permitted by this Agreement) of the Company’s securities or assets, other than the financing for a transaction that has been approved by the Board;
(ix) separately or in conjunction with any other person 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, make, seek to propose, or participate in making a proposal (publicly, privately or to the Company) regarding, or effect, any extraordinary corporate transaction involving the Company or its securities (including, without limitation, any merger, reorganization, recapitalization, extraordinary dividend, liquidation, tender or exchange offer or non-ordinary course sale or transfer of assets);
(x) knowingly (after due inquiry) engage in any act or conduct causing the Common Stock to become eligible for termination of registration pursuant to Section 12(g)(4) of the Exchange Act, except for acquisitions of shares of Common Stock permitted under this Agreement;
(xi) institute, solicit solicit, assist or join, as a party, join in any litigation, arbitration litigation or other proceeding (including any derivative action) against or involving the Company or any of its future, current or former directors or officers (including derivative actions), except for claims directly arising under this Agreement or employees; provided, that nothing shall prevent ▇▇▇▇▇▇▇ Capital from (A) bringing litigation to enforce the provisions of this Confidentiality Agreement, (B) making counterclaims with respect to any proceeding initiated by, or on behalf of, the Company against ▇▇▇▇▇▇▇ Capital, or (C) exercising statutory appraisal rights; provided, further, that the foregoing shall also not prevent ▇▇▇▇▇▇▇ Capital from responding to or complying with a validly issued legal process;
(viiixii) request that the prohibitions in this Agreement be waived or otherwise seek an amendment or modification of this Agreement in any manner that would reasonably likely require public disclosure by Twin Haven (or any TH Affiliate) or the Company; or
(xiii) initiate, solicit, assist, facilitate, finance, encourage or otherwise participate (publicly or privately) in any of the foregoing actions by any other person or enter into any discussions, negotiations, agreements, arrangements or understandings with any Third Party person with respect to the matters set forth in this Section 2; or
(ix) contest the validity of, or publicly request any waiver of, the obligations set forth in this Section 2(b). The restrictions set forth above in this Section 2(b) shall not apply for the duration of any period that the Company is not in material compliance with its obligations under Sections 1(a)-(f), Section 3 and Section 18 (after written notice of such material non-compliance has been provided to the Company and the Company has been given a reasonable opportunity to cure such material non-compliance; provided that such notice and opportunity to cure shall not apply in the case of material noncompliance with Sections 1(a), 1(b) or 1(e))thereto.
(c) Provided that Until the standstill obligations are in full force and effect, ▇▇▇▇▇▇▇ Capital together with all controlled Affiliates end of the members of ▇▇▇▇▇▇▇ Capital (such controlled AffiliatesTerm, collectively Twin Haven and individually, the “▇▇▇▇▇▇▇ Capital Affiliates”) TH Affiliates shall cause all Voting Securities owned by them directly or indirectly, whether owned of record or Beneficially Owned, as of the record date for any annual or special meeting of stockholders or in connection with any solicitation of stockholder action by written consent (each a “Stockholder Meeting”) within the 2016 Annual MeetingTerm, in each case that are entitled to votevote at any such Stockholder Meeting, to be present for quorum purposes and to be voted, at all such Stockholder Meetings or at any adjournments or postponements thereof, (i) for all directors nominated by the Board for election at the 2016 Annual Meeting, and in favor of auditor ratification and “say-on-pay” proposals, such Stockholder Meeting and (ii) in accordance with the recommendation of the Board, provided that such recommendation is unanimous (of those voting) and includes the affirmative vote of the New Directors (and any Replacement), Board on any other proposals or other business (other than with respect to an Extraordinary Corporate Transaction) that comes before such meeting (other than any proposals relating Stockholder Meeting, including with respect to mergers, acquisitions or other business combinations or extraordinary transactions, or any amendment to each of the Company’s organizational documents)Designated Annual Meetings.
(d) If at In the event that the Company amends or waives any time following the date term or provision of this that certain Nomination, Standstill and Support Agreement, ▇▇▇▇▇▇▇ Capital’s aggregate Net Long Position in the Common Shares is less than 5% of the outstanding Common Shares dated February 25, 2016 (the “Minimum Ownership LevelBD Agreement”), by and between the Company and Black Diamond Capital Management, L.L.C. (i“Black Diamond”) ▇▇▇▇▇▇▇ Capital shall lose its right or enters into any new agreement or arrangement with Black Diamond, including with respect to identify an Initial New Director the nature and a Replacementscope of the restrictions on Black Diamond set forth in the BD Agreement, (ii) the duration of such restrictions and any exceptions to such nature, scope or duration, the Company shall not be obligated provide to appoint Twin Haven a copy of any such amendment, waiver, agreement or arrangement and, if the Subsequent New Directoramendment, waiver, agreement or arrangement relates to facts and circumstances concerning Black Diamond that are substantially equivalent to facts and circumstances then concerning Twin Haven (iii) it being understood the Company shall not be obligated to nominate the Initial New Director (or any Replacement) and/or the Subsequent New Director for election to the Board at any meeting of stockholders at which directors are to be elected occurring after the time at which ▇▇▇▇▇▇▇ Capital no longer satisfies the Minimum Ownership Level, (iv) the restrictions regarding the size inform Twin Haven of the Board shall no longer be applicablerelevant facts and circumstances underlying the Company’s determination to enter into such amendment, waiver, agreement or arrangement, so as to enable Twin Haven to evaluate whether Twin Haven is then subject to substantially equivalent facts and circumstances), concurrently with or within four (v4) the Board may choose to remove the Initial New Director (or any Replacement) from the Nomination and Governance Committee. Notwithstanding anything to the contrary contained hereinbusiness days thereafter, the parties agree Company shall offer to Twin Haven to enter into a substantially similar amendment, agreement or arrangement or provide a substantially similar waiver to Twin Haven; provided, that even if ▇▇▇▇▇▇▇ Capital’s Net Long Position is less than without limiting the Minimum Ownership Levelforegoing, neither in no event shall the Initial New Director, Company waive the Subsequent New Director or any Replacement shall be required to resign from the Board.
(eobligations of Black Diamond set forth in Section 3(c) For purposes of Section 2(b)(i) and Section 2(d) above, the parties shall determine the amount of outstanding Common Shares in accordance with Section 13d-1 of the Exchange ActBD Agreement without obtaining the consent of Twin Haven.
Appears in 1 contract
Sources: Nomination, Standstill and Support Agreement (Hawaiian Telcom Holdco, Inc.)
Certain Other Matters. (a) For purposes In connection with the petition filed on October 21, 2015 by Black Diamond with the Public Utilities Commission of this Agreementthe State of Hawaii (the “PUC”), the “Standstill Period” Company will, no later than the due date for such letter established by the PUC, issue a letter in support of the PUC’s granting of permission for Black Diamond and its Affiliates to acquire up to 31.5% of the Company’s outstanding Voting Securities. Such letter of support shall mean the period from the date of this Agreement until 12:01 a.m., Eastern time, on the 30th day prior be in form reasonably acceptable to the advance notice deadline for making director nominations at the 2017 Annual MeetingBlack Diamond.
(b) During The BD Designee shall be entitled to resign from the Standstill PeriodBoard at any time in his or her discretion; provided, no member however, Black Diamond agrees that during the Term, unless requested in writing in advance by the Board, none of ▇▇▇▇▇▇▇ Capital Black Diamond or any BD Affiliate shall, directly or indirectly, and each member of ▇▇▇▇▇▇▇ Capital shall cause each ▇▇▇▇▇▇▇ Capital Affiliate (as defined herein) not to, and shall use its reasonable best efforts to cause each of its Associates not to, directly or indirectly (it being understood and agreed that the following restrictions shall not apply to the New Directors BD Designee’s participation in Board and Board committee meetings (including votes on and any Replacementdiscussions regarding matters at such meetings) acting solely in their capacities such person’s capacity as a director of the Company):) do any of the following:
(i) acquire or cause seek to be acquired Beneficial Ownership of acquire any Voting Securities (as defined hereinincluding options, swaps, derivatives or convertibles or other similar instruments, whether real or synthetic) (for purposes of this calculationif, including any Synthetic Positions) immediately after such that immediately following such purchase ▇▇▇▇▇▇▇ Capital purchase, Black Diamond and the ▇▇▇▇▇▇▇ Capital BD Affiliates would collectively Beneficially Own (for purposes of this calculation, including any Synthetic Positions as Beneficial Ownership or control more than 31.5% of the associated Voting Securities) more than twelve and one-half percent (12.5%) of the Company’s issued and outstanding Voting Securities;
(ii) form, join or participate in a partnership, limited partnership, syndicate, arrangement, understanding or any “group” within the meaning of Section 13(d)(3) of the Exchange Act, or otherwise act in concert with any person in respect of the Company’s securities, other than a group consisting solely of members of Black Diamond and BD Affiliates disclosed in a public filing with the SEC on or prior to the date of this Agreement;
(iii) solicit proxies or written consents of stockholders or conduct any other type of referendum (binding or non-binding) with respect to, or from the holders of, the Voting Securities, or become a “participant” (as such term is defined in Instruction 3 to Item 4 of Schedule 14A promulgated under the Securities Exchange Act of 1934, as amended (the “Exchange Act”)), in or assist any Person (as defined herein) not a party to this Agreement (a “Third Party”) in any “solicitation” of any proxy, consent or other authority (as such terms are defined having the meanings given in Regulation 14A under the Exchange Act) to vote any shares of the Voting Securities (other than such encouragementSecurities, advice or influence that is consistent with Company management’s recommendation in connection with such matter);
(iii) encourage, advise or influence any other Person or assist any Third Party in so encouraging, assisting or influencing any Person person with respect to the “solicitation” of any proxy or 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 with respect to the Company or influence that is consistent with the Company’s recommendation in connection with such matter)its affairs;
(iv) form call or join in a partnershipseek to call any special meeting of Company stockholders, limited partnership, syndicate seek or request any list of holders of any Voting Securities or other groupCompany securities (other than, including solely for the purpose of complying with the following clause (vi), a “group” as defined under Section 13(d) list of holders of 3% or more of the Exchange ActCommon Stock), with respect to the Voting Securities (for the avoidance of doubt, excluding any group composed solely of ▇▇▇▇▇▇▇ Capital and the ▇▇▇▇▇▇▇ Capital Affiliates);
(v) present at any annual meeting or any special meeting of the Company’s stockholders or through action by written consent any proposal for consideration for action by stockholders the stockholders, or otherwise seek the removal of to advise or influence any member of the Board or (except as expressly permitted in this Agreement person with respect to a Replacement) propose the voting of any nominee for election of the Voting Securities, or engage in any conduct intended to cause stockholders to vote contrary to the Board or seek representation on recommendation of the Board;
(v) seek any change in composition of the Board (including proposing any nominee for election or removal of any director), except for the BD Designee or Replacement BD Designee;
(vi) make sell, offer or agree to sell, directly or indirectly, any request for stockholders list materials Company securities or underlying rights to any person (other than as described in the following proviso) that would knowingly (after due inquiry) result in such person and its Affiliates collectively Beneficially Owning or controlling 5% or more of the Common Stock outstanding at such time or would increase the Beneficial or other books and records ownership interest of any person that (together with its Affiliates) already has a Beneficial or other ownership interest of 5% or more of the Common Stock; provided, the foregoing will not restrict the sale by Black Diamond of Company securities or underlying rights (A) to one person where such sale knowingly (after due inquiry) results in such one person and its Affiliates collectively Beneficially Owning or controlling up to 9.99% of the Common Stock outstanding at such time, in each case so long as such disposition would not, in the good faith judgment of Black Diamond after consultation with the Company, reasonably be likely to result in an impairment of the Company’s net operating losses under Section 220 382 of the Delaware General Corporation Law Internal Revenue Code of 1986, as amended (it being understood and agreed that all sales permitted to be made during the Term under this clause (A) shall be to the same one person), or otherwiseapplicable state law or (B) in response to a tender offer made by a person not Affiliated with Black Diamond and which tender offer is recommended by the Board to the Company’s stockholders as set forth on a Schedule 14D-9 filed with the SEC (it being understood and agreed that Black Diamond shall have no obligation to investigate or inquire as to the shareholdings of any counterparty to any open market sales (provided, after due inquiry, Black Diamond is not aware of the identity of the counterparty to such trade at the time of the trade) or underwritten sales, and the limitation on sales provided in this paragraph shall not apply to sales to one or more underwriters as part of a bona fide underwritten public offering);
(vii) grant any proxy, consent or other authority to vote with respect to any matters (other than to the named proxies included in the Company’s proxy card for any annual meeting or special meeting of stockholders) or deposit any Voting Securities of the Company in a voting trust or, except as set forth in Section 3(c) below, subject them to a voting agreement or other arrangement of similar effect with respect to any annual meeting, special meeting of stockholders or action by written consent (excluding customary brokerage accounts, margin accounts, prime brokerage accounts and the like);
(viii) arrange or participate in any financing for the purchase by any person (other than Black Diamond and the BD Affiliates to the extent expressly permitted by this Agreement) of the Company’s securities or assets, other than the financing for a transaction that has been approved by the Board;
(ix) separately or in conjunction with any other person 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, make, seek to propose, or participate in making a proposal (publicly, privately or to the Company) regarding, or effect, any extraordinary corporate transaction involving the Company or its securities (including, without limitation, any merger, reorganization, recapitalization, extraordinary dividend, liquidation, tender or exchange offer or non-ordinary course sale or transfer of assets);
(x) knowingly (after due inquiry) engage in any act or conduct causing the Common Stock to become eligible for termination of registration pursuant to Section 12(g)(4) of the Exchange Act, except for acquisitions of shares of Common Stock permitted under this Agreement;
(xi) institute, solicit solicit, assist or join, as a party, join in any litigation, arbitration litigation or other proceeding (including any derivative action) against or involving the Company or any of its future, current or former directors or officers (including derivative actions), except for claims directly arising under this Agreement or employees; provided, that nothing shall prevent ▇▇▇▇▇▇▇ Capital from (A) bringing litigation to enforce the provisions of this Confidentiality Agreement, (B) making counterclaims with respect to any proceeding initiated by, or on behalf of, the Company against ▇▇▇▇▇▇▇ Capital, or (C) exercising statutory appraisal rights; provided, further, that the foregoing shall also not prevent ▇▇▇▇▇▇▇ Capital from responding to or complying with a validly issued legal process;
(viiixii) request that the prohibitions in this Agreement be waived or otherwise seek an amendment or modification of this Agreement in any manner that would reasonably likely require public disclosure by Black Diamond (or any BD Affiliate) or the Company; or
(xiii) initiate, solicit, assist, facilitate, finance, encourage or otherwise participate (publicly or privately) in any of the foregoing actions by any other person or enter into any discussions, negotiations, agreements, arrangements or understandings with any Third Party person with respect to the matters set forth in this Section 2; or
(ix) contest the validity of, or publicly request any waiver of, the obligations set forth in this Section 2(b). The restrictions set forth above in this Section 2(b) shall not apply for the duration of any period that the Company is not in material compliance with its obligations under Sections 1(a)-(f), Section 3 and Section 18 (after written notice of such material non-compliance has been provided to the Company and the Company has been given a reasonable opportunity to cure such material non-compliance; provided that such notice and opportunity to cure shall not apply in the case of material noncompliance with Sections 1(a), 1(b) or 1(e))thereto.
(c) Provided that Until the standstill obligations are in full force and effect, ▇▇▇▇▇▇▇ Capital together with all controlled Affiliates end of the members of ▇▇▇▇▇▇▇ Capital (such controlled AffiliatesTerm, collectively Black Diamond and individually, the “▇▇▇▇▇▇▇ Capital Affiliates”) BD Affiliates shall cause all Voting Securities owned by them directly or indirectly, whether owned of record or Beneficially Owned, as of the record date for any annual or special meeting of stockholders or in connection with any solicitation of stockholder action by written consent (each a “Stockholder Meeting”) within the 2016 Annual MeetingTerm, in each case that are entitled to votevote at any such Stockholder Meeting, to be present for quorum purposes and to be voted, at all such Stockholder Meetings or at any adjournments or postponements thereof, (i) for all directors nominated by the Board for election at the 2016 Annual Meeting, and in favor of auditor ratification and “say-on-pay” proposals, such Stockholder Meeting and (ii) in accordance with the recommendation of the Board, provided that such recommendation is unanimous (of those voting) and includes the affirmative vote of the New Directors (and any Replacement), Board on any other proposals or other business (other than with respect to an Extraordinary Corporate Transaction) that comes before such meeting (other than any proposals relating Stockholder Meeting, including with respect to mergers, acquisitions or other business combinations or extraordinary transactions, or any amendment to the Company’s organizational documents).
(d) If at any time following the date of this Agreement, ▇▇▇▇▇▇▇ Capital’s aggregate Net Long Position in the Common Shares is less than 5% each of the outstanding Common Shares (the “Minimum Ownership Level”), (i) ▇▇▇▇▇▇▇ Capital shall lose its right to identify an Initial New Director and a Replacement, (ii) the Company shall not be obligated to appoint the Subsequent New Director, (iii) the Company shall not be obligated to nominate the Initial New Director (or any Replacement) and/or the Subsequent New Director for election to the Board at any meeting of stockholders at which directors are to be elected occurring after the time at which ▇▇▇▇▇▇▇ Capital no longer satisfies the Minimum Ownership Level, (iv) the restrictions regarding the size of the Board shall no longer be applicable, and (v) the Board may choose to remove the Initial New Director (or any Replacement) from the Nomination and Governance Committee. Notwithstanding anything to the contrary contained herein, the parties agree that even if ▇▇▇▇▇▇▇ Capital’s Net Long Position is less than the Minimum Ownership Level, neither the Initial New Director, the Subsequent New Director or any Replacement shall be required to resign from the BoardDesignated Annual Meetings.
(e) For purposes of Section 2(b)(i) and Section 2(d) above, the parties shall determine the amount of outstanding Common Shares in accordance with Section 13d-1 of the Exchange Act.
Appears in 1 contract
Sources: Nomination, Standstill and Support Agreement (Hawaiian Telcom Holdco, Inc.)
Certain Other Matters. (ai) The ▇▇▇▇ Designee shall be entitled to resign from the Board at any time in his discretion. For purposes of this Agreement, the “Standstill Period” shall mean the period from the date of this Agreement until the earliest of (A) the latest of (x) 12:01 a.m., Eastern time, a.m. on the 30th forty-fifth (45th) day prior to the advance notice deadline for making director nominations at the 2017 Company’s 2016 Annual Meeting of Shareholders (the “2016 Annual Meeting”), (y) if the ▇▇▇▇ Designee (or any other representative of any ▇▇▇▇ Affiliate or Associate) is included, and agrees to serve, on the Company’s slate of director nominees for the 2016 Annual Meeting or for any annual meeting of shareholders of the Company subsequent thereto (each, an “Applicable Meeting”), the date that is forty-five (45) days prior to the expiration of the Company’s advance notice period for the nomination of directors at the next annual meeting of shareholders of the Company following the Applicable Meeting, and (z) fifteen (15) days after the date that the ▇▇▇▇ Designee (or such other representative of any ▇▇▇▇ Affiliate or Associate, as applicable) is no longer a member of the Board and (B) a material breach of this Agreement by the Company which is not cured within 10 days of written notice from ▇▇▇▇ specifying the material breach.
(ii) Notwithstanding anything to the contrary in this Section 2(a), the Company agrees that for so long as the ▇▇▇▇ Designee is on the Board the Board shall promptly notify ▇▇▇▇ in writing of any decision not to nominate the ▇▇▇▇ Designee for election at the 2016 Annual Meeting or any subsequent annual meeting of shareholders (which written notice, if any, shall be delivered no later than 60 days prior to the advance notice deadline for making director nominations at such upcoming annual meeting).
(b) During the Standstill Period, no member of ▇▇▇▇▇▇▇ Capital shallshall not, directly or indirectly, and each member of ▇▇▇▇▇▇▇ Capital shall cause each ▇▇▇the ▇▇▇▇ Capital Designee and each other ▇▇▇▇ Affiliate (as defined herein) not to, and shall use its reasonable best efforts to cause each of its Associates Associate not to, directly or indirectly (it being understood and agreed that the following restrictions shall not apply to the New Directors (and any Replacement) acting in their capacities as a director ▇▇▇▇ Designee’s discussions solely among other members of the Board and/or management of the Company):
(i) acquire or cause to be acquired Beneficial Ownership of any Voting Securities (as defined herein) (for purposes of this calculation, including any Synthetic Positions) such that immediately following such purchase ▇▇▇▇▇▇▇ Capital and the ▇▇▇▇▇▇▇ Capital Affiliates would collectively Beneficially Own (for purposes of this calculation, including any Synthetic Positions as Beneficial Ownership of the associated Voting Securities) more than twelve and one-half percent (12.5%) of the Company’s issued and outstanding Voting Securities;
(ii) solicit proxies or written consents of stockholders shareholders or conduct any other type of referendum (binding or non-binding) with respect to, or from the holders of, the Voting SecuritiesSecurities (as defined below), or become a “participant” (as such term is defined in Instruction 3 to Item 4 of Schedule 14A promulgated under the Securities Exchange Act of 1934, as amended (the “Exchange Act”)), ) in or assist any Person Third Party (as defined herein) not a party to this Agreement (a “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 the Voting Securities (other than such encouragement, advice or influence that is consistent with Company managementthe Board’s recommendation in connection with such matter);
(iiiii) encourage, advise or influence any other Person person or assist any Third Party in so encouraging, assisting or influencing any Person 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 CompanyCompany management’s recommendation in connection with such matter);
(iviii) form or join in a partnership, limited partnership, syndicate or other group, including a “group” as defined under Section 13(d) of the Exchange Act, with respect to the Voting Securities (for the avoidance of doubt, excluding any group composed solely of ▇▇▇▇▇▇▇ Capital Affiliates and Associates), or otherwise support or participate in any effort by a Third Party with respect to the ▇▇▇▇▇▇▇ Capital Affiliatesmatters set forth in Section 2(b);
(viv) present at any annual meeting or any special meeting of the Company’s stockholders shareholders or through action by written consent any proposal for consideration for action by stockholders shareholders or seek the removal of any member of the Board or (except as expressly permitted in this Agreement with respect to a Replacement) propose any nominee for election to the Board or seek representation on the Board; or call or request the calling of a special meeting of shareholders or action by shareholders through written consent;
(v) other than in Rule 144 open market broker sale transactions where the identity of the purchaser is not known and in underwritten widely dispersed public offerings, 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 any ▇▇▇▇ Affiliate or Associate to any person or entity not a party to this agreement (a “Third Party”) that, to JANA’s or its Affiliate’s or Associate’s knowledge (after due inquiry in connection with a private, non-open market transaction, it being understood that such knowledge shall be deemed to exist with respect to any publicly available information, including information in documents filed with the SEC) would result in such Third Party, together with its Affiliates, having beneficial ownership in the aggregate of 5% or more of the shares of Common Stock outstanding at such time or would increase the beneficial ownership interest of any Third Party who, together with its Affiliates, has a beneficial ownership interest in the aggregate of 5% or more of the shares of Common Stock outstanding at such time, except in each case in a transaction approved by the Board;
(vi) grant any proxy, consent or other authority to vote with respect to any matters (other than to the named proxies included in the Company’s proxy card for any annual meeting or special meeting of stockholders) or deposit any Voting Securities of the Company in a voting trust or subject them to a voting agreement or other arrangement of similar effect with respect to any annual meeting except as provided in Section 2(c) below, special meeting of shareholders or action by written consent (excluding customary brokerage accounts, margin accounts, prime brokerage accounts and the like);
(vii) make any request for stockholders list stocklist materials or other books and records of the Company under 805 Ill. Comp. Stat. 5/7.75., Section 220 of the Delaware General Corporation Law or otherwiseotherwise (provided that this clause (vii) shall not limit the ▇▇▇▇ Designee’s rights to request information solely in such person’s capacity as a director of the Company);
(viiviii) in any manner, directly or indirectly, make, or cause to be made, or in any way encourage any other person to make or cause to be made, any public statement or public announcement, including in any document or report filed with or furnished to the SEC or through the press, media, analysts or other persons, that disparages, defames or slanders, or otherwise constitutes an ad hominem attack on, the Company, or the Company’s subsidiaries, Affiliates, successors, assigns, officers (including any former officer and any person who serves on or following the date of this Agreement as an officer), directors (including any former director and any person who serves on or following the date of this Agreement as a director), or employees; provided that ▇▇▇▇ will, subject to the Confidentiality Agreement, be permitted to make objective statements that reflect JANA’s view, as a shareholder, with respect to factual matters concerning specific acts or determinations of the Company (“Objective Statements”). The limitations set forth in this Section 2(b)(viii) shall not prevent ▇▇▇▇ or any ▇▇▇▇ Affiliate or Associate from responding to any statement made by the Company or any of its Affiliates or Associates of the nature described in Section 2(d) of this Agreement if such statement was made in breach of this Agreement;
(ix) institute, solicit solicit, assist or join, as a party, any litigation, arbitration or other proceeding (including any derivative action) against or involving the Company or any of its future, current or former directors or officers or employees; provided(including derivative actions), that nothing shall prevent ▇▇▇▇▇▇▇ Capital from (A) bringing litigation other than an action to enforce the provisions of this AgreementAgreement instituted in accordance with and subject to Section 7;
(x) without the prior approval of the Board, separately or in conjunction with any other person or entity 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 (Bpublicly, privately or to the Company) making counterclaims with respect or participate in, effect or seek to effect, any proceeding initiated bytender offer or exchange offer, merger, acquisition, reorganization, restructuring, recapitalization or other business combination involving the Company or any of its subsidiaries or its or their securities or a material amount of the assets or businesses of the Company, any of the Company’s Affiliates, or on behalf ofany subsidiary, business, venture or division of the Company against ▇▇▇foregoing, or encourage, initiate or support any other Third Party in any such activity;
(xi) purchase or cause to be purchased or otherwise acquire or agree to acquire Beneficial Ownership of any Voting Securities, if in any such case, immediately after the taking of such action, ▇▇▇▇ CapitalAffiliates and Associates would, in the aggregate, collectively Beneficially Own, or (C) exercising statutory appraisal rights; providedhave an economic interest in, further, an amount that would exceed 4.9% of the foregoing shall also not prevent ▇▇▇▇▇▇▇ Capital from responding to or complying with a validly issued legal processthen outstanding shares of Common Stock;
(viiixii) enter into any discussions, negotiations, agreements, arrangements or understandings with any Third Party with respect to the matters set forth in this Section 2; or
(ixxiii) contest request, directly or indirectly, any amendment or waiver of the validity of, or publicly request foregoing in a manner that would reasonably likely require public disclosure by any waiver of, the obligations set forth in this Section 2(b). The restrictions set forth above in this Section 2(b) shall not apply for the duration of any period that the Company is not in material compliance with its obligations under Sections 1(a)-(f), Section 3 and Section 18 (after written notice of such material non-compliance has been provided to the Company and the Company has been given a reasonable opportunity to cure such material non-compliance; provided that such notice and opportunity to cure shall not apply in the case of material noncompliance with Sections 1(a), 1(b) or 1(e)).
(c) Provided that the standstill obligations are in full force and effect, ▇▇▇▇▇▇▇ Capital together with all controlled Affiliates of the members of ▇▇▇▇▇▇▇ Capital (such controlled Affiliates, collectively and individually, the “▇▇▇▇▇▇▇ Capital Affiliates”) shall cause all Voting Securities owned by them directly Affiliate or indirectly, whether owned of record Associate or Beneficially Owned, as of the record date for the 2016 Annual Meeting, that are entitled to vote, to be present for quorum purposes and to be voted, (i) for all directors nominated by the Board for election at the 2016 Annual Meeting, and in favor of auditor ratification and “say-on-pay” proposals, and (ii) in accordance with the recommendation of the Board, provided that such recommendation is unanimous (of those voting) and includes the affirmative vote of the New Directors (and any Replacement), on any other proposals or other business that comes before such meeting (other than any proposals relating to mergers, acquisitions or other business combinations or extraordinary transactions, or any amendment to the Company’s organizational documents).
(d) If at any time following the date of this Agreement, ▇▇▇▇▇▇▇ Capital’s aggregate Net Long Position in the Common Shares is less than 5% of the outstanding Common Shares (the “Minimum Ownership Level”), (i) ▇▇▇▇▇▇▇ Capital shall lose its right to identify an Initial New Director and a Replacement, (ii) the Company shall not be obligated to appoint the Subsequent New Director, (iii) the Company shall not be obligated to nominate the Initial New Director (or any Replacement) and/or the Subsequent New Director for election to the Board at any meeting of stockholders at which directors are to be elected occurring after the time at which ▇▇▇▇▇▇▇ Capital no longer satisfies the Minimum Ownership Level, (iv) the restrictions regarding the size of the Board shall no longer be applicable, and (v) the Board may choose to remove the Initial New Director (or any Replacement) from the Nomination and Governance Committee. Notwithstanding anything to the contrary contained herein, the parties agree that even if ▇▇▇▇▇▇▇ Capital’s Net Long Position is less than the Minimum Ownership Level, neither the Initial New Director, the Subsequent New Director or any Replacement shall be required to resign from the Board.
(e) For purposes of Section 2(b)(i) and Section 2(d) above, the parties shall determine the amount of outstanding Common Shares in accordance with Section 13d-1 of the Exchange Act.
Appears in 1 contract