Standstill and Voting. (a) Each Ancora Investor agrees that during the Standstill Period, the Ancora Investors will not (and they will not assist or encourage others to) not to, directly or indirectly, in any manner, without prior written approval of the Board: (i) take any actions, including acquiring, seeking to acquire or agreeing to acquire (directly or indirectly, whether by market purchases, private purchases, tender or exchange offer, through the acquisition of control of another person, by joining a “group” (within the meaning of Section 13(d)(3) of the Exchange Act), through swap or hedging transactions or otherwise) (A) ownership (Beneficial or otherwise) of any shares of Common Stock or any securities convertible or exchangeable into or exercisable for any shares of Common Stock (including any derivative securities or any other rights decoupled from the underlying securities of the Company) such that the Ancora Investors hold, directly or indirectly, in excess of 5.0% of the then-outstanding shares of Common Stock (the “Maximum Ownership Cap”); or (B) any interest in any indebtedness of the Company; (ii) other than in open market sale transactions where the identity of the purchaser is not known, sell, offer, or agree to sell, directly or indirectly, through swap or hedging transactions or otherwise, the securities of the Company or any rights decoupled from the underlying securities held by the Ancora Investors to any person or entity not (A) a party to this Agreement, (B) a member of the Board, (C) an officer of the Company or (D) an Affiliate of the Ancora Investors (any person or entity not set forth in clauses (A)-(D) shall be referred to as a “Third Party”) that would result in such Third Party, together with its Affiliates, owning, controlling or otherwise having any, beneficial or other ownership interest representing in the aggregate in excess of 5.0% of the shares of Common Stock outstanding at such time; (iii) (A) advise or knowingly encourage or influence any other Person or knowingly assist any third party in so encouraging, assisting or influencing any other Person with respect to the giving or withholding of any proxy, consent or other authority to vote or in conducting any type of referendum (other than such encouragement, advice or influence that is consistent with the Board’s recommendation in connection with such matter) or (B) advise, influence or encourage any Person with respect to, or effect or seek to effect, whether alone or in concert with others, the election, nomination or removal of a director other than as permitted by Section 1; (iv) solicit proxies or written consents of stockholders or conduct any other type of referendum (binding or non-binding) (including any “withhold,” “vote no” or similar campaign) with respect to the shares of Common Stock, or from the holders of the shares of Common Stock, or become a “participant” (as such term is defined in Instruction 3 to Item 4 of Schedule 14A promulgated under the Exchange Act) in or knowingly encourage or assist any third party in any “solicitation” of any proxy, consent or other authority (as such terms are defined under the Exchange Act) to vote any shares of Common Stock (other than any encouragement, advice or influence that is consistent with the Board’s recommendation in connection with such matter); (v) (A) form, join or in any other way participate in any partnership, limited partnership, syndicate or “group” with respect to any shares of Common Stock (other than a “group” solely consisting of the Ancora Investors; provided, however, that an Affiliate of an Ancora Investor will only be permitted to join the “group” following the execution of this Agreement, so long as (x) any such Affiliate agrees to be bound by the terms and conditions of this Agreement and (y) such joining would not result in the Ancora Investors’ “group” Beneficially Owning in the aggregate in excess of the Maximum Ownership Cap), (B) grant any proxy, consent or other authority to vote with respect to any matters to be voted on by the Company’s stockholders (other than to the named proxies included in the Company’s proxy card for any Stockholder Meeting (as defined below) or in accordance with Section 2(b)) or (C) agree to deposit or deposit any shares of Common Stock or any securities convertible or exchangeable into or exercisable for any such shares of Common Stock in any voting trust, agreement or similar arrangement (other than (I) to the named proxies included in the Company’s proxy card for any Stockholder Meeting, (II) customary brokerage accounts, margin accounts, prime brokerage accounts and the like or (III) any agreement solely among the Ancora Investors); (vi) separately or in conjunction with any third party in which it is or proposes to be either a principal, partner or financing source or is acting or proposes to act as broker or agent for compensation, propose (publicly or privately, with or without conditions), indicate an interest in or effect, any tender offer or exchange offer, merger, acquisition, reorganization, restructuring, recapitalization or other business combination involving the Company or any of its subsidiaries or the assets or businesses of the Company or any of its subsidiaries or actively encourage or initiate or support any other third party in any such activity; provided, however, that the Ancora Investors shall be permitted to (A) sell or tender their shares of Common Stock, and otherwise receive consideration, pursuant to any such transaction and (B) vote on any such transaction in accordance with Section 2(b); (vii) (I) nominate, recommend for nomination or give notice of an intent to nominate or recommend for nomination a person for election at any Stockholder Meeting at which the Company’s directors are to be elected or (II) (A) present at any Stockholder Meeting any proposal (pursuant to Rule 14a-8 or otherwise) for consideration for action by the stockholders or (B) call or seek to call, or request the call of, alone or in concert with others, or support another stockholder’s call for, any meeting of stockholders, whether or not such a meeting is permitted by the Company’s organizational documents; (viii) take any action in support of or make any proposal or request that constitutes: (A) controlling, changing or influencing the Board, management or policies of the Company, including any plans or proposals to change the number or term of directors or the removal of any directors, or to fill any vacancies on the Board; (B) any material change in the capitalization, stock repurchase programs and practices or dividend policy of the Company; (C) any other material change in the Company’s management, business or corporate structure; (D) seeking to have the Company waive or make amendments or modifications to the Company’s charter or Bylaws or any of the Company Policies (each as may be amended from time to time), or other actions that may impede or facilitate the acquisition of control of the Company by any person; (E) causing a class of securities of the Company to be delisted from, or to cease to be authorized to be quoted on, any securities exchange; or (F) causing a class of securities of the Company to become eligible for termination of registration pursuant to Section 12(g)(4) of the Exchange Act, in each case with respect to the foregoing clauses (A) through (F), except as set forth in Section 1; (ix) make any request for stockholder list materials or other books and records of the Company under Section 220 of the Delaware General Corporation Law or otherwise; provided that if any Ancora Appointee (or any Replacement, as applicable) makes such a request solely in such Ancora Appointee’s capacity as a director of the Company in a manner consistent with his or her fiduciary duties to the Company, such material and other books and records may not be shared with any member of the Ancora Investors, notwithstanding any other provision of this Agreement; (x) except in the case of fraud by the Company, institute, solicit, join (as a party) or knowingly assist any litigation, arbitration or other proceeding against the Company or any of its current or former directors or officers (including derivative actions), other than (A) litigation by the Ancora Investors to enforce the provisions of this Agreement, (B) counterclaims with respect to any proceeding initiated by, or on behalf of, the Company or its Affiliates against the Ancora Investors or any Ancora Appointee (or any Replacement, as applicable) and (C) the exercise of statutory appraisal rights; provided that the foregoing shall not prevent the Ancora Investors from responding to or complying with a validly issued legal process (and the Company agrees that this Section 2(a)(x) shall apply mutatis mutandis to the Company and its directors, officers, employees and agents (in each case, acting in such capacity) and Affiliates with respect to the Ancora Investors); (xi) encourage, facilitate, support, participate in or enter into any negotiations, agreements, arrangements or understandings with respect to the taking of any actions by any other Person in connection with the foregoing that is prohibited to be taken by the Ancora Investors (except as set forth in Section 1); (xii) request that the Company, directly or indirectly, amend or waive any provision of this Section 2 (included this clause (a)(xii)), other than through non-public communications with the Company that would not reasonably be expected to trigger public disclosure obligations for any of the Parties. The foregoing provisions of this Section 2(a) shall not be deemed to prevent any member of the Ancora Investors from (i) communicating privately with the Board or any of the Company’s executive officers regarding any matter, so long as such communications are not intended to, and would not reasonably be expected to, require the Company or any Ancora Investor to make public disclosure with respect thereto, (ii) communicating privately with stockholders of the Company and are not made with an intent to otherwise violate this Section 2(a), Section 3 or any other provision of this Agreement, (iii) identifying potential director candidates to serve on the Board so long as such actions do not create a public disclosure obligation for the Ancora Investors or the Company, are not publicly disclosed by the Ancora Investors and are undertaken on a basis reasonably designed to be confidential; or (iv) making or sending private communications to investors in any member of the Ancora Investors or prospective investors in any member of the Ancora Investors, provided that such statements or communications (1) are based on publicly available information; and (2) are not reasonably expected to be publicly disclosed and are understood by all parties to be confidential communications. Furthermore, for the avoidance of doubt, nothing in this Agreement shall be deemed to restrict in any way the Ancora Appointees (or any Replacement, as applicable) in the exercise of their fiduciary duties under applicable law as directors of the Company. (b) In respect of any vote or consent of the Company’s stockholders during the Standstill Period (whether at an annual or special stockholder meeting or pursuant to an action by written consent of the stockholders) (each a “Stockholder Meeting”), each of the Ancora Investors shall (i) appear at each such Stockholder Meeting or otherwise cause all Common Stock Beneficially Owned by each Ancora Investor and their respective Affiliates to be counted as present for purposes of establishing a quorum and (ii) vote, or cause to be voted, all shares of Common Stock Beneficially Owned by each Ancora Investor and their respective Affiliates using the Company’s proxy card or voting instruction form (and shall not execute any proxy card or voting instruction form in respect of a Stockholder Meeting other than the proxy card and voting instruction form being solicited by or on behalf of the Board) in accordance with the recommendation of the Board with respect to (x) the election, removal and/or replacement of directors (a “Director Proposal”), (y) the ratification of the appointment of the Company’s independent registered public accounting firm and (z) any other proposal submitted to the Company’s stockholders at a Stockholder Meeting, in each case as such recommendation of the Board is set forth in the applicable definitive proxy statement filed in respect thereof; provided, however, that in the event Institutional Shareholder Services Inc. (“ISS”) and Glass Lewis & Co., LLC (“Glass Lewis”) make a recommendation that differs from the recommendation of the Board with respect to any proposal submitted to the stockholders at any Stockholder Meeting (other than Director Proposals), the Ancora Investors are permitted to vote the shares of Common Stock Beneficially Owned by them at such Stockholder Meeting in accordance with the ISS and Glass Lewis recommendation; provided, further, that the Ancora Investors shall be entitled to vote the shares of Common Stock Beneficially Owned by them in their sole discretion with respect to (A) any publicly announced proposal relating to any transaction pursuant to which any person is or becomes a Beneficial Owner, directly or indirectly, of securities of the Company representing more than 50% of the Company’s then-outstanding equity interests and voting power, a merger, stock-for-stock transaction, spin-off, acquisition, disposition of all or substantially all of the assets of the Company and its subsidiaries or other business combination involving the Company, (B) any financing, recapitalization, restructuring, share issuance or similar extraordinary transaction, (C) the implementation of takeover defenses not in existence as of the date of this Agreement, in each case, that requires a vote of the Company’s stockholders.
Appears in 1 contract
Sources: Cooperation Agreement (Mueller Water Products, Inc.)
Standstill and Voting. (a) a. Each Ancora member of the Investor Group agrees that during the Standstill Period, the Ancora Investors Investor Group and the Investor Group Affiliates will not (and they will not assist or encourage others to) not to), directly or indirectly, in any manner, without prior written approval of the Board:
(i) : i. take any actions, including acquiring, seeking to acquire or agreeing to acquire (directly or indirectly, whether by market purchases, private purchases, tender or exchange offer, through the acquisition of control of another person, by joining a “group” (within the meaning of Section 13(d)(3) of the Exchange Act), through swap or hedging transactions or otherwise) (A) ownership (Beneficial or otherwise) of any shares of Common Stock (or Beneficial Ownership thereof) or any securities convertible or exchangeable into or exercisable for any shares of Common Stock (or Beneficial Ownership thereof) (including any derivative securities or any other rights decoupled from the underlying securities of the Company) such that the Ancora Investors hold, directly or indirectly, Investor Group would Beneficially Own in the aggregate in excess of 5.04.99% of the then-outstanding then‑outstanding shares of Common Stock (the “Maximum Ownership Cap”)Stock; or (B) any interest in any indebtedness of the Company;
(ii) . other than in open market sale transactions where the identity of the purchaser is not known, sell, offer, or agree to sell, directly or indirectly, through swap or hedging transactions or otherwise, the securities of the Company or any rights decoupled from the underlying securities held by the Ancora Investors Investor Group to any person or entity not (A) a party to this Agreement, (B) a member of the Board, (C) an officer of the Company or (D) an Affiliate of the Ancora Investors Investor Group (any person or entity not set forth in clauses (A)-(DA)‑(D) shall be referred to as a “Third Party”) that would result in such Third Party, together with its Affiliates, owning, controlling or otherwise having any, beneficial or other ownership interest representing in the aggregate in excess of 5.0% of the shares of Common Stock outstanding at such time;
(; iii) . (A) advise or knowingly encourage or influence any other Person or knowingly assist any third party in so encouraging, assisting or influencing any other Person with respect to the giving or withholding of any proxy, consent or other authority to vote or in conducting any type of referendum (other than such encouragement, advice or influence that is consistent with the Board’s recommendation in connection with such matter) or (B) advise, influence or encourage any Person with respect to, or effect or seek to effect, whether alone or in concert with others, the election, nomination or removal of a director other than as permitted by Section 1;
(; iv) . solicit proxies or written consents of stockholders or conduct any other type of referendum (binding or non-bindingnon‑binding) (including any “withhold,” “vote no” or similar campaign) with respect to the shares of Common Stock, or from the holders of the shares of Common Stock, or become a “participant” (as such term is defined in Instruction 3 to Item 4 of Schedule 14A promulgated under the Exchange Act) in or knowingly encourage or assist any third party in any “solicitation” of any proxy, consent or other authority (as such terms are defined under the Exchange Act) to vote any shares of Common Stock (other than any encouragement, advice or influence that is consistent with the Board’s recommendation in connection with such matter);; v.
(v) (A) form, join or in any other way participate in any partnership, limited partnership, syndicate or a “group” with respect to any shares of Common Stock (other than a “group” solely consisting of the Ancora Investors; provided, however, that an Affiliate of an Ancora Investor will only be permitted to join the “group” following the execution of this Agreement, so long as (x) any such Affiliate agrees to be bound by the terms and conditions of this Agreement and (y) such joining would not result in the Ancora Investors’ “group” Beneficially Owning in the aggregate in excess of the Maximum Ownership CapGroup or Investor Group Affiliates), (B) grant any proxy, consent or other authority to vote with respect to any matters to be voted on by the Company’s stockholders (other than to the named proxies included in the Company’s proxy card for any Stockholder Meeting (as defined below) or in accordance with Section 2(b)) or (C) agree to deposit or deposit any shares of Common Stock or any securities convertible or exchangeable into or exercisable for any such shares of Common Stock in any voting trust, agreement or similar arrangement (other than (I) to the named proxies included in the Company’s proxy card for any Stockholder Meeting, (II) customary brokerage accounts, margin accounts, prime brokerage accounts and the like or (III) any agreement solely among the Ancora InvestorsInvestor Group or Investor Group Affiliates);
(; vi) . separately or in conjunction with any third party in which it is or proposes to be either a principal, partner or financing source or is acting or proposes to act as broker or agent for compensation, propose (publicly or privately, with or without conditions), indicate an interest in or effect, effect any tender offer or exchange offer, merger, acquisition, reorganization, restructuring, recapitalization or other business combination involving the Company or any of its subsidiaries or the assets or businesses of the Company or any of its subsidiaries or actively encourage or initiate or support any other third party in any such activity; provided, however, that the Ancora Investors Investor Group and Investor Group Affiliates shall be permitted to (A) sell or tender their shares of Common Stock, and otherwise receive consideration, pursuant to any such transaction and (B) vote on any such transaction in accordance with Section 2(b);; vii.
(vii) (IA) nominate, recommend for nomination or give notice of an intent to nominate or recommend for nomination a person for election at any Stockholder Meeting at which the Company’s directors are to be elected or (II) (AB)(I) present at any Stockholder Meeting any proposal (pursuant to Rule 14a-8 or otherwise) for consideration for action by the stockholders or (BII) call or seek to call, or request the call of, alone or in concert with others, or support another stockholder’s call for, any meeting of stockholders, whether or not such a meeting is permitted by the Company’s organizational documents;
(; viii) . take any action in support of or make any proposal or request that constitutes: (A) controlling, changing or influencing the Board, management or policies of the Company, including any plans or proposals to change the number or term of directors or the removal of any directors, or to fill any vacancies on the Board; (B) any material change in the capitalization, stock repurchase programs and practices or dividend policy of the Company; (C) any other material change in the Company’s management, business or corporate structure; (D) seeking to have the Company waive or make amendments or modifications to the Company’s charter or charter, the Company’s Bylaws or any of the Company Policies (each as may be amended from time to time), or other actions that may impede or facilitate the acquisition of control of the Company by any person; (E) causing a class of securities of the Company to be delisted from, or to cease to be authorized to be quoted on, any securities exchange; or (F) causing a class of securities of the Company to become eligible for termination of registration pursuant to Section 12(g)(4) of the Exchange Act, in each case with respect to the foregoing clauses (A) through (F), except as set forth in Section 1;
(; ix) . make any request for stockholder list materials or other books and records of the Company under Section 220 of the Delaware General Corporation Law or otherwise; provided that if any Ancora Appointee Director (or any ReplacementReplacement Director, as applicable) makes such a request solely in such Ancora AppointeeDirector’s capacity as a director of the Company in a manner consistent with his or her fiduciary duties to the Company, such material and other books and records may not be shared with any member of the Ancora InvestorsInvestor Group or any Investor Group Affiliate, notwithstanding any other provision of this Agreement;
(x) except in the case of fraud by the Company, ; x. institute, solicit, join (as a party) or knowingly assist any litigation, arbitration or other proceeding against the Company or any of its current or former directors or officers (including derivative actions), other than (A) litigation by the Ancora Investors Investor Group to enforce the provisions of this Agreement, (B) counterclaims with respect to any proceeding initiated by, or on behalf of, the Company or its Affiliates against the Ancora Investors Investor Group or any Ancora Appointee Director (or any ReplacementReplacement Director, as applicable) and (C) the exercise of statutory appraisal rights; provided that the foregoing shall not prevent the Ancora Investors Investor Group from responding to or complying with a validly issued legal process (and the Company agrees that this Section 2(a)(x) shall apply mutatis mutandis to the Company and its directors, officers, employees and agents (in each case, acting in such capacity) and Affiliates with respect to the Ancora InvestorsInvestor Group);
(; xi) . encourage, facilitate, support, participate in or enter into any negotiations, agreements, arrangements or understandings with respect to to, the taking of any actions by any other Person in connection with the foregoing that is prohibited to be taken by the Ancora Investors Investor Group (except as set forth in Section 1);
(; or xii) . request that the Company, directly or indirectly, amend or waive any provision of this Section 2 (included including this clause (a)(xii)), other than through non-public non‑public communications with the Company that would not reasonably be expected to trigger public disclosure obligations for any of the Parties. The foregoing provisions of this Section 2(a) shall not be deemed to prevent any member of the Ancora Investors from (i) communicating privately with the Board or any of the Company’s executive officers regarding any matter, so long as such communications are not intended to, and would not reasonably be expected to, require the Company or any Ancora Investor to make public disclosure with respect thereto, (ii) communicating privately with stockholders of the Company and are not made with an intent to otherwise violate this Section 2(a), Section 3 or any other provision of this Agreement, (iii) identifying potential director candidates to serve on the Board so long as such actions do not create a public disclosure obligation for the Ancora Investors or the Company, are not publicly disclosed by the Ancora Investors and are undertaken on a basis reasonably designed to be confidential; or (iv) making or sending private communications to investors in any member of the Ancora Investors or prospective investors in any member of the Ancora Investors, provided that such statements or communications (1) are based on publicly available information; and (2) are not reasonably expected to be publicly disclosed and are understood by all parties to be confidential communications. Furthermore, for the avoidance of doubt, nothing in this Agreement shall be deemed to restrict in any way the Ancora Appointees (or any Replacement, as applicable) in the exercise of their fiduciary duties under applicable law as directors of the Company.
(b) b. In respect of any vote or consent of the Company’s stockholders during the Standstill Period (whether at an annual or special stockholder meeting or pursuant to an action by written consent of the stockholders) (each a “Stockholder Meeting”), each the Investor Group and the members of the Ancora Investors Investor Group shall (i) appear at each such Stockholder Meeting or otherwise cause all Common Stock Beneficially Owned act in person or by each Ancora Investor proxy and their respective Affiliates to be counted as present for purposes of establishing a quorum and (ii) vote, or cause to be voted, vote all shares of Common Stock Beneficially Owned by each Ancora Investor and their respective Affiliates using the Company’s proxy card or voting instruction form (and shall not execute any proxy card or voting instruction form in respect of a Stockholder Meeting other than the proxy card and voting instruction form being solicited by or on behalf of the Board) them in accordance with the recommendation of the Board with respect to (xi) the election, removal and/or replacement of directors (a “Director Proposal”), (yii) the ratification of the appointment of the Company’s independent registered public accounting firm and (ziii) any other proposal submitted to the Company’s stockholders at a Stockholder Meeting, in each case as such recommendation of the Board is set forth in the applicable definitive proxy statement filed in respect thereof; provided, however, that in the event Institutional Shareholder Services Inc. (“ISS”) and Glass Lewis & Co., LLC (“Glass Lewis”) make a recommendation that differs from the recommendation of the Board with respect to any proposal submitted to the stockholders at any Stockholder Meeting (other than Director Proposals), the Ancora Investors Investor Group and the members of the Investor Group are permitted to vote the shares of Common Stock Beneficially Owned by them at such Stockholder Meeting in accordance with the ISS and Glass Lewis recommendation; provided, further, that the Ancora Investors Investor Group and the members of the Investor Group shall be entitled to vote the shares of Common Stock Beneficially Owned by them in their sole discretion with respect to (A) any publicly announced proposal relating to any transaction pursuant to which any person is or becomes a Beneficial Owner, directly or indirectly, of securities of the Company representing more than 50% of the Company’s then-outstanding equity interests and voting power, a merger, stock-for-stock transaction, spin-off, acquisition, disposition of all or substantially all of the assets of the Company and its subsidiaries or other business combination involving the Company, (B) any financing, recapitalization, restructuring, share issuance or similar extraordinary transaction, transaction or (C) the implementation of takeover defenses not in existence as of the date of this Agreement, in each case, that requires a vote of the Company’s stockholders. c. The “Standstill Period” shall begin as of the date of this Agreement and shall remain in full force and effect until the earlier of (i) the date that is thirty (30) days prior to the notice deadline for the submission of stockholder nominations for the 2025 annual meeting of stockholders pursuant to the Bylaws, and (ii) the date that is one hundred and ten (110) days prior to the first anniversary of the 2024 Annual Meeting; provided, however, that upon the public announcement by the Company of a definitive agreement for any transaction that would constitute or result in a Change of Control (as defined below) which has not been approved by each of the Directors in their capacity as members of the Board, this Agreement shall immediately and automatically terminate in its entirety, and no Party hereunder shall have any further rights or obligations under this Agreement. For purposes of this Agreement, a “Change of Control” shall be deemed to have taken place if (1) any person is or becomes a beneficial owner, directly or indirectly, of securities of the Company representing more than 50% of the equity interests and voting power of the Company’s then outstanding equity securities, (2) the Company effects a merger or a stock-for-stock transaction with a third party whereby immediately after the consummation of the transaction the Company’s stockholders retain less than 50% of the equity interests and voting power of the surviving entity’s then outstanding equity securities or (3) the Company sells all or substantially all of the Company’s assets to a third party. d. Each member of the Investor Group shall comply, and shall cause each of its respective Investor Group Affiliates to comply, with the terms of this Agreement and shall be responsible for any breach of this Agreement by any such Investor Group Affiliate.
Appears in 1 contract
Standstill and Voting. (a) Each a. The Ancora Investor agrees Parties each agree that during the Standstill Period, the Ancora Investors Parties and the Ancora Affiliates will not (and they will not assist or encourage others to) not to), directly or indirectly, in any manner, without prior written approval of the Board:
(i) i. take any actions, including acquiring, seeking to acquire or agreeing to acquire (directly or indirectly), whether by market purchases, private purchases, tender or exchange offer, through the acquisition of control of another person, by joining a “group” (within the meaning of Section 13(d)(3) of the Exchange Act), through swap or hedging transactions or otherwise) (A) ownership (Beneficial or otherwise) of any shares of Common Stock or Warrants (or Beneficial Ownership thereof) or any securities convertible or exchangeable into or exercisable for any shares of Common Stock or Warrants (or Beneficial Ownership thereof) (including any derivative securities or any other rights decoupled from the underlying securities of the CompanyCorporation) such that the Ancora Investors hold, directly or indirectly, Parties would Beneficially Own in excess of 5.09.9% of the then-outstanding shares of Common Stock (the “Maximum Ownership Cap”); or (B) any interest in any indebtedness of the Companyoutstanding at such time;
(ii) . other than in open market sale transactions where the identity of the purchaser is not known, sell, offer, or agree to sell, directly or indirectly, through swap or hedging transactions or otherwise, the securities of the Company Corporation or any rights decoupled from the underlying securities held by the Ancora Investors Parties to any person or entity not (A) a party to this Agreement, (B) a member of the Board, (C) an officer of the Company Corporation or (D) an Affiliate of the Ancora Investors Parties (any person or entity not set forth in clauses clauses
(A)-(DA) (D) shall be referred to as a “Third Party”) that would result in such Third Party, together with its Affiliates, owning, controlling or otherwise having any, beneficial or other ownership interest representing in the aggregate in excess of 5.02.0% of the shares of Common Stock outstanding at such time;
(iii) (A) advise or knowingly encourage or influence any other Person or knowingly assist any third party in so encouraging, assisting or influencing any other Person with respect to the giving or withholding of any proxy, consent or other authority to vote or in conducting any type of referendum (other than such encouragement, advice or influence that is consistent with the Board’s recommendation in connection with such matter) or (B) advise, influence or encourage any Person with respect to, or effect or seek to effect, whether alone or in concert with others, the election, nomination or removal of a director other than as permitted by Section 1;
(iv) . solicit proxies or written consents of stockholders shareholders or conduct any other type of referendum (binding or non-binding) (including any “withhold,” “vote no” or similar campaign) with respect to the shares of Common Stock, or from the holders of the shares of Common Stock, or become a “participant” (as such term is defined in Instruction 3 to Item 4 of Schedule 14A promulgated under the Exchange Act) in or knowingly encourage or assist any third party in any “solicitation” of any proxy, consent or other authority (as such terms are defined under the Exchange Act) to vote any shares of Common Stock (other than any encouragement, advice or influence that is consistent with the Board’s recommendation in connection with such matter);
(v) (A) form, join or in any other way participate in any partnership, limited partnership, syndicate or a “group” with respect to any shares of Common Stock Securities (other than a “group” solely consisting of the Ancora Investors; provided, however, that an Affiliate of an Parties or Ancora Investor will only be permitted to join the “group” following the execution of this Agreement, so long as (x) any such Affiliate agrees to be bound by the terms and conditions of this Agreement and (y) such joining would not result in the Ancora Investors’ “group” Beneficially Owning in the aggregate in excess of the Maximum Ownership Capcontrolled Affiliates), (B) grant any proxy, consent or other authority to vote with respect to any matters to be voted on by the CompanyCorporation’s stockholders shareholders at any annual or special shareholder meeting or pursuant to an action by written consent of the shareholders (each a “Shareholder Meeting”), other than to the named proxies included in the CompanyCorporation’s proxy card for any Stockholder Shareholder Meeting (as defined below) or in accordance with Section 2(b)) or (C) agree to deposit or deposit any shares of Common Stock Securities or any securities convertible or exchangeable into or exercisable for any such shares of Common Stock Securities in any voting trust, agreement or similar arrangement (other than (I) to the named proxies included in the CompanyCorporation’s proxy card for any Stockholder Shareholder Meeting, (II) customary brokerage accounts, margin accounts, prime brokerage accounts and the like or (III) any agreement solely among the Ancora InvestorsParties or Ancora controlled Affiliates);
(vi) . separately or in conjunction with any third party in which it is or proposes to be either a principal, partner or financing source or is acting or proposes to act as broker or agent for compensation, propose (publicly or privately, with or without conditions), indicate an interest in or effect, effect any tender offer or exchange offer, merger, acquisition, division, reorganization, restructuring, recapitalization or other business combination involving the Company Corporation or any of its subsidiaries or the assets or businesses of the Company Corporation or any of its subsidiaries or actively encourage or initiate or support any other third party in any such activity; provided, however, that the Ancora Investors Parties and Ancora Affiliates shall be permitted to (A) sell or tender their shares of Common StockSecurities, and otherwise receive consideration, pursuant to any such transaction and (B) vote on any such transaction in accordance with Section 2(b);
(vii) (I) nominate, recommend for nomination or give notice of an intent to nominate or recommend for nomination a person for election at any Stockholder Meeting at which the Company’s directors are to be elected or (II) (A) present at any Stockholder Shareholder Meeting any proposal (pursuant to Rule 14a-8 or otherwise) for consideration for action by the stockholders shareholders or (B) call or seek to call, or request the call of, alone or in concert with others, or support another stockholdershareholder’s call for, any meeting of stockholdersshareholders, whether or not such a meeting is permitted by the CompanyCorporation’s organizational documents;
(viii) . take any action in support of or make any proposal or request that constitutes: (A) controlling, changing or influencing the Board, management or policies of the CompanyCorporation, including any plans or proposals to change the number or term of directors or the removal of any directors, or to fill any vacancies on the Board; (B) any material change in the capitalization, stock repurchase programs and practices or dividend policy of the CompanyCorporation; (C) any other material change in the CompanyCorporation’s management, business or corporate structure; (D) seeking to have the Company Corporation waive or make amendments or modifications to the CompanyCorporation’s charter or Bylaws or any of the Company Policies (each as may be amended from time to time), or other actions that may impede or facilitate the acquisition of control of the Company by any personbylaws; (E) causing a class of securities of the Company Corporation to be delisted from, or to cease to be authorized to be quoted on, any securities exchange; or (F) causing a class of securities of the Company Corporation to become eligible for termination of registration pursuant to Section 12(g)(4) of the Exchange Act; (G) seeking to have the Corporation waive or make amendments or modifications to the Warrants, or other actions that related to the Warrants, or (H) other actions that may impede or facilitate the acquisition of control of the Corporation by any Person; unless such actions are approved by the Board, in each case with respect to the foregoing clauses (A) through (FH), except as set forth in Section 1;
(ix) . make any request for stockholder shareholder list materials or other books and records of the Company Corporation under Section 220 1508 of the Delaware General Pennsylvania Business Corporation Law of 1988, as amended (the “BCL”), or otherwise; provided that if any Ancora Appointee (or any Replacement, as applicable) makes such a request solely in such Ancora Appointee’s capacity as a director of the Company in a manner consistent with his or her fiduciary duties to the CompanyCorporation, such material and other books and records may not be shared with any member other Ancora Party, Member of the Ancora InvestorsParties or any Ancora Affiliate, notwithstanding any other provision of this Agreement;
(x) except in the case of fraud by the Company, x. institute, solicit, join (as a party) or knowingly assist any litigation, arbitration or other proceeding against the Company Corporation or any of its current or former directors or officers (including derivative actions), other than (A) litigation by the Ancora Investors Parties to enforce the provisions of this Agreement, (B) counterclaims with respect to any proceeding initiated by, or on behalf of, the Company Corporation or its Affiliates against the Ancora Investors Parties or any Ancora Appointee (or any Replacement, as applicable) and (C) the exercise of statutory appraisal rights; provided that the foregoing shall not prevent the Ancora Investors Parties from responding to or complying with a validly issued legal process (and the Company Corporation agrees that this Section 2(a)(x) shall apply mutatis mutandis to the Company Corporation and its directors, officers, employees and agents (in each case, acting in such capacity) and Affiliates with respect to the Ancora InvestorsParties);
(xi) . encourage, facilitate, support, participate in or enter into any negotiations, agreements, arrangements or understandings with respect to to, the taking of any actions by any other Person in connection with the foregoing that is prohibited to be taken by the Ancora Investors (except as set forth in Section 1);Parties; or
(xii) . request that the CompanyCorporation, directly or indirectly, amend or waive any provision of this Section 2 (included including this clause (a)(xii)), other than through non-public communications with the Company Corporation that would not reasonably be expected to trigger public disclosure obligations for any of the PartiesParty. The foregoing provisions of this Section 2(a) shall not be deemed to prevent any member Member of the Ancora Investors Parties from (i) communicating privately with the Board or any of the CompanyCorporation’s executive officers regarding any matter, so long as such communications are not intended to, and would not reasonably be expected to, require the Company Corporation or any Member of the Ancora Investor Parties to make public disclosure with respect thereto, (ii) communicating privately with stockholders shareholders of the Company Corporation and are others in a manner that does not made with an intent to otherwise violate this Section 2(a), Section 3 hereof or any other provision of this Agreement, Agreement or (iii) identifying potential director candidates taking any action to serve on the Board so long as such actions do not create a public disclosure obligation for the Ancora Investors extent necessary to comply with any law, rule or the Companyregulation or any action required by any governmental or regulatory authority or stock exchange that has, are not publicly disclosed by the Ancora Investors and are undertaken on a basis reasonably designed to be confidential; or (iv) making or sending private communications to investors in may have, jurisdiction over any member Member of the Ancora Investors or prospective investors in any member of the Ancora Investors, provided that such statements or communications (1) are based on publicly available information; and (2) are not reasonably expected to be publicly disclosed and are understood by all parties to be confidential communicationsParties. Furthermore, for the avoidance of doubt, nothing in this Agreement shall be deemed to restrict in any way the any Ancora Appointees (or any Replacement, as applicable) Appointee in the exercise of their his fiduciary duties under applicable law as directors a director of the CompanyCorporation.
(b) b. In respect of any vote or consent of the CompanyCorporation’s stockholders shareholders during the Standstill Period (whether at an annual or special stockholder shareholder meeting or pursuant to an action by written consent of the stockholdersshareholders) (each a “Stockholder Shareholder Meeting”), each the Ancora Parties and the Members of the Ancora Investors Parties shall (i) appear at each such Stockholder Meeting or otherwise cause all Common Stock Beneficially Owned act in person or by each Ancora Investor proxy and their respective Affiliates to be counted as present for purposes of establishing a quorum and (ii) vote, or cause to be voted, vote all shares of Common Stock Beneficially Owned by each Ancora Investor and their respective Affiliates using the Company’s proxy card or voting instruction form (and shall not execute any proxy card or voting instruction form in respect of a Stockholder Meeting other than the proxy card and voting instruction form being solicited by or on behalf of the Board) them in accordance with the recommendation of the Board with respect to (xi) the election, removal and/or replacement of directors (a “Director Proposal”), (yii) the ratification of the appointment of the CompanyCorporation’s independent registered public accounting firm and (ziii) any other proposal submitted to the CompanyCorporation’s stockholders shareholders at a Stockholder Shareholder Meeting, in each case as such recommendation of the Board is set forth in the applicable definitive proxy statement filed in respect thereof; provided, however, that in the event Institutional Shareholder Services Inc. (“ISS”) and Glass Lewis & Co., LLC (“Glass Lewis”) make a recommendation that differs from the recommendation of the Board with respect to any proposal submitted to the stockholders shareholders at any Stockholder Shareholder Meeting (other than Director Proposals), the Ancora Investors Parties and the Members of the Ancora Parties are permitted to vote the shares of Common Stock Beneficially Owned by them at such Stockholder Shareholder Meeting in accordance with the ISS and Glass Lewis or G▇▇▇▇ ▇▇▇▇▇ recommendation; provided, further, that the Ancora Investors Parties and the Members of the Ancora Parties shall be entitled to vote the shares of Common Stock Beneficially Owned by them in their sole discretion with respect to (A) any publicly announced proposal relating to any transaction pursuant to which any person is or becomes a Beneficial Owner, directly or indirectly, of securities of the Company representing more than 50% of the Company’s then-outstanding equity interests and voting power, a merger, stock-for-stock transaction, spin-off, acquisition, disposition of all or substantially all of the assets of the Company Corporation and its subsidiaries or other business combination involving the Company, (B) any financing, recapitalization, restructuring, share issuance or similar extraordinary transaction, (C) the implementation of takeover defenses not in existence as of the date of this AgreementCorporation, in each case, that requires a vote of the CompanyCorporation’s stockholdersshareholders.
Appears in 1 contract
Standstill and Voting. (a) Each The Ancora Investor agrees Parties each agree that during the Standstill Period, the Ancora Investors Parties and the Ancora Affiliates will not (and they will not assist or encourage others to) not to), directly or indirectly, in any manner, without prior written approval of the Board:
(i) take any actions, including acquiring, seeking to acquire or agreeing to acquire (directly or indirectly, whether by market purchases, private purchases, tender or exchange offer, through the acquisition of control of another person, by joining a “group” (within the meaning of Section 13(d)(3) of the Exchange Act), through swap or hedging transactions or otherwise) (A) ownership (Beneficial or otherwise) of any shares of Common Stock (or Beneficial Ownership thereof) or any securities convertible or exchangeable into or exercisable for any shares of Common Stock (or Beneficial Ownership thereof) (including any derivative securities or any other rights decoupled from the underlying securities of the Company) such that the Ancora Investors hold, directly or indirectly, Parties would Beneficially Own in excess of 5.09.9% of the then-outstanding shares of Common Stock (the “Maximum Ownership Cap”); or (B) any interest in any indebtedness of the CompanyStock;
(ii) other than in open market sale transactions where the identity of the purchaser is not known, sell, offer, or agree to sell, directly or indirectly, through swap or hedging transactions or otherwise, the securities of the Company or any rights decoupled from the underlying securities held by the Ancora Investors Parties to any person or entity not (A) a party to this Agreement, (B) a member of the Board, (C) an officer of the Company or (D) an Affiliate of the Ancora Investors Parties (any person or entity not set forth in clauses (A)-(D) shall be referred to as a “Third Party”) that would result in such Third Party, together with its Affiliates, owning, controlling or otherwise having any, beneficial or other ownership interest representing in the aggregate in excess of 5.04.9% of the shares of Common Stock outstanding at such time;
(iii) (A) advise or knowingly encourage or influence any other Person or knowingly assist any third party in so encouraging, assisting or influencing any other Person with respect to the giving or withholding of any proxy, consent or other authority to vote or in conducting any type of referendum (other than such encouragement, advice or influence that is consistent with the Board’s recommendation in connection with such matter) or (B) advise, influence or encourage any Person with respect to, or effect or seek to effect, whether alone or in concert with others, the election, nomination or removal of a director other than as permitted by Section 1;
(iv) solicit proxies or written consents of stockholders shareholders or conduct any other type of referendum (binding or non-binding) (including any “withhold,” “vote no” or similar campaign) with respect to the shares of Common Stock, or from the holders of the shares of Common Stock, or become a “participant” (as such term is defined in Instruction 3 to Item 4 of Schedule 14A promulgated under the Exchange Act) in or knowingly encourage or assist any third party in any “solicitation” of any proxy, consent or other authority (as such terms are defined under the Exchange Act) to vote any shares of Common Stock (other than any encouragement, advice or influence that is consistent with the Board’s recommendation in connection with such matter);
(v) (A) form, join or in any other way participate in any partnership, limited partnership, syndicate or a “group” with respect to any shares of Common Stock (other than a “group” solely consisting of the Ancora Investors; provided, however, that an Affiliate of an Parties or Ancora Investor will only be permitted to join the “group” following the execution of this Agreement, so long as (x) any such Affiliate agrees to be bound by the terms and conditions of this Agreement and (y) such joining would not result in the Ancora Investors’ “group” Beneficially Owning in the aggregate in excess of the Maximum Ownership CapAffiliates), (B) grant any proxy, consent or other authority to vote with respect to any matters to be voted on by the Company’s stockholders shareholders (other than to the named proxies included in the Company’s proxy card for any Stockholder Shareholder Meeting (as defined below) or in accordance with Section 2(b)) or (C) agree to deposit or deposit any shares of Common Stock or any securities convertible or exchangeable into or exercisable for any such shares of Common Stock in any voting trust, agreement or similar arrangement (other than (I) to the named proxies included in the Company’s proxy card for any Stockholder Shareholder Meeting, (II) customary brokerage accounts, margin accounts, prime brokerage accounts and the like or (III) any agreement solely among the Ancora InvestorsParties or Ancora Affiliates);
(vi) separately or in conjunction with any third party in which it is or proposes to be either a principal, partner or financing source or is acting or proposes to act as broker or agent for compensation, propose (publicly or privately, with or without conditions), indicate an interest in or effect, effect any tender offer or exchange offer, merger, acquisition, reorganization, restructuring, recapitalization or other business combination involving the Company or any of its subsidiaries or the assets or businesses of the Company or any of its subsidiaries or actively encourage or initiate or support any other third party in any such activity; provided, however, that the Ancora Investors Parties and Ancora Affiliates shall be permitted to (Ai) sell or tender their shares of Common Stock, and otherwise receive consideration, pursuant to any such transaction and (Bii) vote on any such transaction in accordance with Section 2(b);
(vii) (I) nominate, recommend for nomination or give notice of an intent to nominate or recommend for nomination a person for election at any Stockholder Meeting at which the Company’s directors are to be elected or (II) (A) present at any Stockholder Shareholder Meeting any proposal (pursuant to Rule 14a-8 or otherwise) for consideration for action by the stockholders shareholders or (B) call or seek to call, or request the call of, alone or in concert with others, or support another stockholdershareholder’s call for, any meeting of stockholdersshareholders, whether or not such a meeting is permitted by the Company’s organizational documents;
(viii) take any action in support of or make any proposal or request that constitutes: (A) controlling, changing or influencing the Board, management or policies of the Company, including any plans or proposals to change the number or term of directors or the removal of any directors, or to fill any vacancies on the Board; (B) any material change in the capitalization, stock repurchase programs and practices or dividend policy of the Company; (C) any other material change in the Company’s management, business or corporate structure; (D) seeking to have the Company waive or make amendments or modifications to the Company’s charter or Bylaws or any of the Company Policies (each as may be amended from time to time)bylaws, or other actions that may impede or facilitate the acquisition of control of the Company by any person; (E) causing a class of securities of the Company to be delisted from, or to cease to be authorized to be quoted on, any securities exchange; or (F) causing a class of securities of the Company to become eligible for termination of registration pursuant to Section 12(g)(4) of the Exchange Act, in each case with respect to the foregoing clauses (A) through (F), except as set forth in Section 1; provided, however, that following the date that is thirty (30) days prior to the deadline for the submission of shareholder nominations for the Company’s 2022 annual meeting of shareholders (the “2022 Annual Meeting”), the Ancora Parties and the Ancora Affiliates may speak to potential director candidates in connection with the 2022 Annual Meeting so long as such conversations do not create a public disclosure obligation for the Ancora Parties or the Company and are undertaken on a basis reasonably designed to be maintained as confidential and solely between the Ancora Parties and such director candidate and otherwise in accordance in all material respects with the Ancora Parties’ normal practices in the circumstances;
(ix) make any request for stockholder shareholder list materials or other books and records of the Company under Section 220 ▇▇-▇▇-▇▇▇ of the Delaware General Corporation Law Tennessee Code or otherwise; provided that if any Ancora Appointee (or any ReplacementReplacement Appointee, as applicable) makes such a request solely in such Ancora Appointee’s capacity as a director of the Company in a manner consistent with his (or her her) fiduciary duties to the Company, such material and other books and records may not be shared with any member other Ancora Party, Member of the Ancora InvestorsParties or Ancora Affiliate, notwithstanding any other provision of this Agreement;
(x) except in the case of fraud by the Company, institute, solicit, join (as a party) or knowingly assist any litigation, arbitration or other proceeding against the Company or any of its current or former directors or officers (including derivative actions), other than (A) litigation by the Ancora Investors Parties to enforce the provisions of this Agreement, (B) counterclaims with respect to any proceeding initiated by, or on behalf of, the Company or its Affiliates against the Ancora Investors Parties or any Ancora Appointee (or any ReplacementReplacement Appointee, as applicable) and (C) the exercise of statutory appraisal rights; provided that the foregoing shall not prevent the Ancora Investors Parties from responding to or complying with a validly issued legal process (and the Company agrees that this Section 2(a)(x) shall apply mutatis mutandis to the Company and its directors, officers, employees and agents (in each case, acting in such capacity) and Affiliates with respect to the Ancora InvestorsParties);
(xi) encourage, facilitate, support, participate in or enter into any negotiations, agreements, arrangements or understandings with respect to to, the taking of any actions by any other Person in connection with the foregoing that is prohibited to be taken by the Ancora Investors Parties (except as set forth in Section 1);; or
(xii) request that the Company, directly or indirectly, amend or waive any provision of this Section 2 (included including this clause (a)(xii)), other than through non-public communications with the Company that would not reasonably be expected to trigger public disclosure obligations for any of the PartiesParty. The foregoing provisions of this Section 2(a) shall not be deemed to prevent any member Member of the Ancora Investors Parties from (i) communicating privately with the Board or any of the Company’s executive officers regarding any matter, so long as such communications are not intended to, and would not reasonably be expected to, require the Company or any Member of the Ancora Investor Parties to make public disclosure with respect thereto, (ii) communicating privately with stockholders shareholders of the Company and are others in a manner that does not made with an intent to otherwise violate this Section 2(a), ) or Section 3 or any other provision of this Agreement, (iii) identifying potential director candidates taking any action to serve on the Board so long as such actions do not create a public disclosure obligation for the Ancora Investors extent necessary to comply with any law, rule or the Companyregulation or any action required by any governmental or regulatory authority or stock exchange that has, are not publicly disclosed by the Ancora Investors and are undertaken on a basis reasonably designed to be confidential; or (iv) making or sending private communications to investors in may have, jurisdiction over any member Member of the Ancora Investors or prospective investors in any member of the Ancora Investors, provided that such statements or communications (1) are based on publicly available information; and (2) are not reasonably expected to be publicly disclosed and are understood by all parties to be confidential communicationsParties. Furthermore, for the avoidance of doubt, nothing in this Agreement shall be deemed to restrict in any way the Ancora Appointees (or any ReplacementReplacement Appointee, as applicable) in the exercise of their fiduciary duties under applicable law as directors of the Company.
(b) In respect of any vote or consent of the Company’s stockholders shareholders during the Standstill Period (whether at an annual or special stockholder shareholder meeting or pursuant to an action by written consent of the stockholdersshareholders) (each a “Stockholder Shareholder Meeting”), each the Ancora Parties and the Members of the Ancora Investors Parties shall (i) appear at each such Stockholder Meeting or otherwise cause all Common Stock Beneficially Owned act in person or by each Ancora Investor proxy and their respective Affiliates to be counted as present for purposes of establishing a quorum and (ii) vote, or cause to be voted, vote all shares of Common Stock Beneficially Owned by each Ancora Investor and their respective Affiliates using the Company’s proxy card or voting instruction form (and shall not execute any proxy card or voting instruction form in respect of a Stockholder Meeting other than the proxy card and voting instruction form being solicited by or on behalf of the Board) them in accordance with the recommendation of the Board with respect to (xi) the election, removal and/or replacement of directors (a “Director Proposal”), (yii) the ratification of the appointment of the Company’s independent registered public accounting firm and (ziii) any other proposal submitted to the Company’s stockholders shareholders at a Stockholder Shareholder Meeting, in each case as such recommendation of the Board is set forth in the applicable definitive proxy statement filed in respect thereof; provided, however, that in the event Institutional Shareholder Services Inc. (“ISS”) and Glass Lewis & Co., LLC (“Glass Lewis”) make a recommendation that differs from the recommendation of the Board with respect to any proposal submitted to the stockholders shareholders at any Stockholder Shareholder Meeting (other than Director Proposals), the Ancora Investors Parties and the Members of the Ancora Parties are permitted to vote the shares of Common Stock Beneficially Owned by them at such Stockholder Shareholder Meeting in accordance with the ISS and Glass Lewis recommendation; provided, further, that the Ancora Investors Parties and the Members of the Ancora Parties shall be entitled to vote the shares of Common Stock Beneficially Owned by them in their sole discretion with respect to (A) any publicly announced proposal relating to any transaction pursuant to which any person is or becomes a Beneficial Owner, directly or indirectly, of securities of the Company representing more than 50% of the Company’s then-outstanding equity interests and voting power, a merger, stock-for-stock transaction, spin-off, acquisition, disposition of all or substantially all of the assets of the Company and its subsidiaries or other business combination involving the Company, (B) any financing, recapitalization, restructuring, share issuance or similar extraordinary transaction, (C) the implementation of takeover defenses not in existence as of the date of this Agreement, in each case, that requires a vote of the Company’s stockholdersshareholders.
Appears in 1 contract
Standstill and Voting. (a) a. Each Ancora member of the Investor Group agrees that during the Standstill Period, the Ancora Investors Investor Group and the Investor Group Affiliates will not (and they will not assist or encourage others to) not to), directly or indirectly, in any manner, without prior written approval of the Board:
(i) i. take any actions, including acquiring, seeking to acquire or agreeing to acquire (directly or indirectly, whether by market purchases, private purchases, tender or exchange offer, through the acquisition of control of another person, by joining a “group” (within the meaning of Section 13(d)(3) of the Exchange Act), through swap or hedging transactions or otherwise) (A) ownership (Beneficial or otherwise) of any shares of Common Stock (or Beneficial Ownership thereof) or any securities convertible or exchangeable into or exercisable for any shares of Common Stock (or Beneficial Ownership thereof) (including any derivative securities or any other rights decoupled from the underlying securities of the Company) such that the Ancora Investors hold, directly or indirectly, would Beneficially Own in excess of 5.07.0% of the then-outstanding shares of Common Stock (or the “Maximum Ownership Cap”); or (B) any interest Pacific Point Investors would Beneficially Own in any indebtedness excess of 2.9% of the Companythen-outstanding shares of Common Stock;
(ii) . other than in open market sale transactions where the identity of the purchaser is not known, sell, offer, or agree to sell, directly or indirectly, through swap or hedging transactions or otherwise, the securities of the Company or any rights decoupled from the underlying securities held by the Ancora Investors Investor Group to any person or entity not (A) a party to this Agreement, (B) a member of the Board, (C) an officer of the Company or (D) an Affiliate of the Ancora Investors Investor Group (any person or entity not set forth in clauses (A)-(D) shall be referred to as a “Third Party”) that would result in such Third Party, together with its Affiliates, owning, controlling or otherwise having any, beneficial or other ownership interest representing in the aggregate in excess of 5.0% of the shares of Common Stock outstanding at such time;
(iii) (A) advise or knowingly encourage or influence any other Person or knowingly assist any third party in so encouraging, assisting or influencing any other Person with respect to the giving or withholding of any proxy, consent or other authority to vote or in conducting any type of referendum (other than such encouragement, advice or influence that is consistent with the Board’s recommendation in connection with such matter) or (B) advise, influence or encourage any Person with respect to, or effect or seek to effect, whether alone or in concert with others, the election, nomination or removal of a director other than as permitted by Section 1;
(iv) . solicit proxies or written consents of stockholders shareholders or conduct any other type of referendum (binding or non-binding) (including any “withhold,” “vote no” or similar campaign) with respect to the shares of Common Stock, or from the holders of the shares of Common Stock, or become a “participant” (as such term is defined in Instruction 3 to Item 4 of Schedule 14A promulgated under the Exchange Act) in or knowingly encourage or assist any third party in any “solicitation” of any proxy, consent or other authority (as such terms are defined under the Exchange Act) to vote any shares of Common Stock (other than any encouragement, advice or influence that is consistent with the Board’s recommendation in connection with such matter);
(v) (A) form, join or in any other way participate in any partnership, limited partnership, syndicate or a “group” with respect to any shares of Common Stock (other than a “group” solely consisting of the Ancora Investors; provided, however, that an Affiliate of an Ancora Investor will only be permitted to join the “group” following the execution of this Agreement, so long as (x) any such Affiliate agrees to be bound by the terms and conditions of this Agreement and (y) such joining would not result in the Ancora Investors’ “group” Beneficially Owning in the aggregate in excess of the Maximum Ownership CapGroup or Investor Group Affiliates), (B) grant any proxy, consent or other authority to vote with respect to any matters to be voted on by the Company’s stockholders shareholders (other than to the named proxies included in the Company’s proxy card for any Stockholder Shareholder Meeting (as defined below) or in accordance with Section 2(b)) or (C) agree to deposit or deposit any shares of Common Stock or any securities convertible or exchangeable into or exercisable for any such shares of Common Stock in any voting trust, agreement or similar arrangement (other than (I) to the named proxies included in the Company’s proxy card for any Stockholder Shareholder Meeting, (II) customary brokerage accounts, margin accounts, prime brokerage accounts and the like or (III) any agreement solely among the Ancora InvestorsInvestor Group or Investor Group Affiliates);
(vi) . separately or in conjunction with any third party in which it is or proposes to be either a principal, partner or financing source or is acting or proposes to act as broker or agent for compensation, propose (publicly or privately, with or without conditions), indicate an interest in or effect, effect any tender offer or exchange offer, merger, acquisition, reorganization, restructuring, recapitalization or other business combination involving the Company or any of its subsidiaries or the assets or businesses of the Company or any of its subsidiaries or actively encourage or initiate or support any other third party in any such activity; provided, however, that the Ancora Investors Investor Group and Investor Group Affiliates shall be permitted to (A) sell or tender their shares of Common Stock, and otherwise receive consideration, pursuant to any such transaction and (B) vote on any such transaction in accordance with Section 2(b);
(vii) (I) nominate, recommend for nomination or give notice of an intent to nominate or recommend for nomination a person for election at any Stockholder Meeting at which the Company’s directors are to be elected or (II) (A) present at any Stockholder Shareholder Meeting any proposal (pursuant to Rule 14a-8 or otherwise) for consideration for action by the stockholders shareholders or (B) call or seek to call, or request the call of, alone or in concert with others, or support another stockholdershareholder’s call for, any meeting of stockholdersshareholders, whether or not such a meeting is permitted by the Company’s organizational documents;
(viii) . take any action in support of or make any proposal or request that constitutes: (A) controlling, changing or influencing the Board, management or policies of the Company, including any plans or proposals to change the number or term of directors or the removal of any directors, or to fill any vacancies on the Board; (B) any material change in the capitalization, stock repurchase programs and practices or dividend policy of the Company; (C) any other material change in the Company’s management, business or corporate structure; (D) seeking to have the Company waive or make amendments or modifications to the Company’s charter or Bylaws or any of the Company Policies (each as may be amended from time to time)bylaws, or other actions that may impede or facilitate the acquisition of control of the Company by any person; (E) causing a class of securities of the Company to be delisted from, or to cease to be authorized to be quoted on, any securities exchange; or (F) causing a class of securities of the Company to become eligible for termination of registration pursuant to Section 12(g)(4) of the Exchange Act, in each case with respect to the foregoing clauses (A) through (F), except as set forth in Section 1;
(ix) . make any request for stockholder shareholder list materials or other books and records of the Company under Section 220 of the Delaware General Corporation Law or otherwise; provided that if any Ancora Investor Group Appointee (or any ReplacementReplacement Appointee, as applicable) makes such a request solely in such Ancora Investor Group Appointee’s capacity as a director of the Company in a manner consistent with his or her fiduciary duties to the Company, such material and other books and records may not be shared with any member of the Ancora InvestorsInvestor Group or any Investor Group Affiliate, notwithstanding any other provision of this Agreement;
(x) x. except in the case of fraud by the Company, institute, solicit, join (as a party) or knowingly assist any litigation, arbitration or other proceeding against the Company or any of its current or former directors or officers (including derivative actions), other than (A) litigation by the Ancora Investors Investor Group to enforce the provisions of this Agreement, (B) counterclaims with respect to any proceeding initiated by, or on behalf of, the Company or its Affiliates against the Ancora Investors Investor Group or any Ancora Investor Group Appointee (or any ReplacementReplacement Appointee, as applicable) and (C) the exercise of statutory appraisal rights; provided that the foregoing shall not prevent the Ancora Investors Investor Group from responding to or complying with a validly issued legal process (and the Company agrees that this Section 2(a)(x) shall apply mutatis mutandis to the Company and its directors, officers, employees and agents (in each case, acting in such capacity) and Affiliates with respect to the Ancora InvestorsInvestor Group);
(xi) . encourage, facilitate, support, participate in or enter into any negotiations, agreements, arrangements or understandings with respect to to, the taking of any actions by any other Person in connection with the foregoing that is prohibited to be taken by the Ancora Investors Investor Group (except as set forth in Section 1);; or
(xii) . request that the Company, directly or indirectly, amend or waive any provision of this Section 2 (included including this clause (a)(xii)), other than through non-public communications with the Company that would not reasonably be expected to trigger public disclosure obligations for any of the Parties. The foregoing provisions of this Section 2(a) shall not be deemed to prevent any member of the Ancora Investors Investor Group from (i) communicating privately with the Board or any of the Company’s executive officers regarding any matter, so long as such communications are not intended to, and would not reasonably be expected to, require the Company or any Ancora member of the Investor Group to make public disclosure with respect thereto, (ii) communicating privately with stockholders shareholders of the Company and are not made with an intent to otherwise violate this Section 2(a), Section 3 or any other provision of this Agreement, (iii) identifying potential director candidates to serve on the Board so long as such actions do not create a public disclosure obligation for the Ancora Investors Investor Group or the Company, are not publicly disclosed by the Ancora Investors Investor Group or its Affiliates and are undertaken on a basis reasonably designed to be confidential; or (iv) making or sending private communications to investors in any member of the Ancora Investors Investor Group or any of their Affiliates or prospective investors in any member of the Ancora InvestorsInvestor Group or any of their Affiliates, provided that such statements or communications (1) are based on publicly available information; and (2) are not reasonably expected to be publicly disclosed and are understood by all parties to be confidential communications; or (v) taking any action to the extent necessary to comply with any law, rule or regulation or any action required by any governmental or regulatory authority or stock exchange that has, or may have, jurisdiction over any member of the Investor Group. Furthermore, for the avoidance of doubt, nothing in this Agreement shall be deemed to restrict in any way the Ancora Investor Group Appointees (or any ReplacementReplacement Appointee, as applicable) in the exercise of their fiduciary duties under applicable law as directors of the Company.
(b) b. In respect of any vote or consent of the Company’s stockholders shareholders during the Standstill Period (whether at an annual or special stockholder shareholder meeting or pursuant to an action by written consent of the stockholdersshareholders) (each a “Stockholder Shareholder Meeting”), each the Investor Group and the members of the Ancora Investors Investor Group shall (i) appear at each such Stockholder Meeting or otherwise cause all Common Stock Beneficially Owned act in person or by each Ancora Investor proxy and their respective Affiliates to be counted as present for purposes of establishing a quorum and (ii) vote, or cause to be voted, vote all shares of Common Stock Beneficially Owned by each Ancora Investor and their respective Affiliates using the Company’s proxy card or voting instruction form (and shall not execute any proxy card or voting instruction form in respect of a Stockholder Meeting other than the proxy card and voting instruction form being solicited by or on behalf of the Board) them in accordance with the recommendation of the Board with respect to (xi) the election, removal and/or replacement of directors (a “Director Proposal”), (yii) the ratification of the appointment of the Company’s independent registered public accounting firm and (ziii) any other proposal submitted to the Company’s stockholders shareholders at a Stockholder Shareholder Meeting, in each case as such recommendation of the Board is set forth in the applicable definitive proxy statement filed in respect thereof; provided, however, that in the event Institutional Shareholder Services Inc. (“ISS”) and Glass Lewis & Co., LLC (“Glass Lewis”) make a recommendation that differs from the recommendation of the Board with respect to any proposal submitted to the stockholders shareholders at any Stockholder Shareholder Meeting (other than Director Proposals), the Ancora Investors Investor Group and the members of the Investor Group are permitted to vote the shares of Common Stock Beneficially Owned by them at such Stockholder Shareholder Meeting in accordance with the ISS and Glass Lewis recommendation; provided, further, that the Ancora Investors Investor Group and the members of the Investor Group shall be entitled to vote the shares of Common Stock Beneficially Owned by them in their sole discretion with respect to (A) any publicly announced proposal relating to any transaction pursuant to which any person is or becomes a Beneficial Owner, directly or indirectly, of securities of the Company representing more than 50% of the Company’s then-outstanding equity interests and voting power, a merger, stock-for-stock transaction, spin-off, acquisition, disposition of all or substantially all of the assets of the Company and its subsidiaries or other business combination involving the Company, (B) any financing, recapitalization, restructuring, share issuance or similar extraordinary transaction, transaction or (C) the implementation of takeover defenses not in existence as of the date of this Agreement, in each case, that requires a vote of the Company’s stockholdersshareholders.
Appears in 1 contract
Sources: Cooperation Agreement (C. H. Robinson Worldwide, Inc.)
Standstill and Voting. (a) a. Each Ancora member of the Investor Group agrees that that, during the Standstill Period, the Ancora Investors Investor Group and Investor Group Affiliates will not (and they will not assist or encourage others to) not to), directly or indirectly, in any manner, without prior written approval of the Board:
(i) i. take any actions, including acquiring, seeking to acquire or agreeing to acquire (directly or indirectly, whether by market purchases, private purchases, tender or exchange offer, through the acquisition of control of another person, by joining a “group” (within the meaning of Section 13(d)(3) of the Exchange Act), through swap or hedging transactions or otherwise) (A) ownership (Beneficial or otherwise) of any shares of Common Stock (or Beneficial Ownership thereof) or any securities convertible or exchangeable into or exercisable for any shares of Common Stock (or Beneficial Ownership thereof) (including any derivative securities or any other rights decoupled from the underlying securities of the Company) such that the Ancora Investors hold, directly or indirectly, would Beneficially Own in excess of 5.07.0% of the then-outstanding shares of Common Stock (or the “Maximum Ownership Cap”); or (B) any interest Pacific Point Investors would Beneficially Own in any indebtedness excess of 2.9% of the Companythen-outstanding shares of Common Stock;
(ii) . other than in open market sale transactions where the identity of the purchaser is not known, sell, offer, or agree to sell, directly or indirectly, through swap or hedging transactions or otherwise, the securities of the Company or any rights decoupled from the underlying securities held by the Ancora Investors Investor Group to any person or entity not (A) a party to this Agreement, (B) a member of the Board, (C) an officer of the Company or (D) an Affiliate of the Ancora Investors Investor Group (any person or entity not set forth in clauses (A)-(D) shall be referred to as a “Third Party”) that would result in such Third Party, together with its Affiliates, owning, controlling or otherwise having any, beneficial or other ownership interest representing in the aggregate in excess of 5.0% of the shares of Common Stock outstanding at such time;
(iii) . (A) advise or knowingly encourage or influence any other Person or knowingly assist any third party in so encouraging, assisting or influencing any other Person with respect to the giving or withholding of any proxy, consent or other authority to vote or in conducting any type of referendum (other than such encouragement, advice or influence that is consistent with the Board’s recommendation in connection with such matter) or (B) advise, influence or encourage any Person with respect to, or effect or seek to effect, whether alone or in concert with others, the election, nomination or removal of a director director, other than as permitted by Section 1;
(iv) . solicit proxies or written consents of stockholders shareholders or conduct any other type of referendum (binding or non-binding) (including any “withhold,” “vote no” or similar campaign) with respect to the shares of Common Stock, or from the holders of the shares of Common Stock, or become a “participant” (as such term is defined in Instruction 3 to Item 4 of Schedule 14A promulgated under the Exchange Act) in or knowingly encourage or assist any third party in any “solicitation” of any proxy, consent or other authority (as such terms are defined under the Exchange Act) to vote any shares of Common Stock (other than any encouragement, advice or influence that is consistent with the Board’s recommendation in connection with such matter);
(v) (A) form, join or in any other way participate in any partnership, limited partnership, syndicate or a “group” with respect to any shares of Common Stock (other than a “group” solely consisting of the Ancora Investors; provided, however, that an Affiliate of an Ancora Investor will only be permitted to join the “group” following the execution of this Agreement, so long as (x) any such Affiliate agrees to be bound by the terms and conditions of this Agreement and (y) such joining would not result in the Ancora Investors’ “group” Beneficially Owning in the aggregate in excess of the Maximum Ownership CapGroup or Investor Group Affiliates), (B) grant any proxy, consent or other authority to vote with respect to any matters to be voted on by the Company’s stockholders shareholders (other than to the named proxies included in the Company’s proxy card for any Stockholder Shareholder Meeting (as defined below) or in accordance with Section 2(b)) or (C) agree to deposit or deposit any shares of Common Stock or any securities convertible or exchangeable into or exercisable for any such shares of Common Stock in any voting trust, agreement or similar arrangement (other than (I) to the named proxies included in the Company’s proxy card for any Stockholder Shareholder Meeting, (II) customary brokerage accounts, margin accounts, prime brokerage accounts and the like or (III) any agreement solely among the Ancora InvestorsInvestor Group or Investor Group Affiliates);
(vi) . separately or in conjunction with any third party in which it is or proposes to be either a principal, partner or financing source or is acting or proposes to act as broker or agent for compensation, propose (publicly or privately, with or without conditions), indicate an interest in or effect, effect any tender offer or exchange offer, merger, acquisition, reorganization, restructuring, recapitalization or other business combination involving the Company or any of its subsidiaries or the assets or businesses of the Company or any of its subsidiaries or actively encourage or initiate or support any other third party in any such activity; provided, however, that the Ancora Investors Investor Group and Investor Group Affiliates shall be permitted to (A) sell or tender their shares of Common Stock, and otherwise receive consideration, pursuant to any such transaction and (B) vote on any such transaction in accordance with Section 2(b);
(vii) (I) nominate, recommend for nomination or give notice of an intent to nominate or recommend for nomination a person for election at any Stockholder Meeting at which the Company’s directors are to be elected or (II) (A) present at any Stockholder Shareholder Meeting any proposal (pursuant to Rule 14a-8 or otherwise) for consideration for action by the stockholders shareholders or (B) call or seek to call, or request the call of, alone or in concert with others, or support another stockholdershareholder’s call for, any meeting of stockholdersshareholders, whether or not such a meeting is permitted by the Company’s organizational documents;
(viii) . take any action in support of or make any proposal or request that constitutes: (A) controlling, changing or influencing the Board, management or policies of the Company, including any plans or proposals to change the number or term of directors or the removal of any directors, or to fill any vacancies on the Board; (B) any material change in the capitalization, stock repurchase programs and practices or dividend policy of the Company; (C) any other material change in the Company’s management, business or corporate structure; (D) seeking to have the Company waive or make amendments or modifications to the Company’s charter or Bylaws or any of the Company Policies (each as may be amended from time to time)bylaws, or other actions that may impede or facilitate the acquisition of control of the Company by any person; (E) causing a class of securities of the Company to be delisted from, or to cease to be authorized to be quoted on, any securities exchange; or (F) causing a class of securities of the Company to become eligible for termination of registration pursuant to Section 12(g)(4) of the Exchange Act, in each case with respect to the foregoing clauses (A) through (F), except as set forth in Section 1;
(ix) . make any request for stockholder shareholder list materials or other books and records of the Company under Section 220 of the Delaware General Corporation Law or otherwise; provided that if any Ancora director, including any Investor Group Appointee (or any ReplacementReplacement Appointee, as applicable) ), makes such a request solely in such Ancora Appointeeperson’s capacity as a director of the Company in a manner consistent with his or her fiduciary duties to the Company, such material and other books and records may not be shared with any member of the Ancora InvestorsInvestor Group or any Investor Group Affiliate, notwithstanding any other provision of this Agreement;
(x) x. except in the case of fraud by the Company, institute, solicit, join (as a party) or knowingly assist any litigation, arbitration or other proceeding against the Company or any of its current or former directors or officers (including derivative actions), other than (A) litigation by the Ancora Investors Investor Group to enforce the provisions of this Agreement, (B) counterclaims with respect to any proceeding initiated by, or on behalf of, the Company or its Affiliates against the Ancora Investors Investor Group or any Ancora Investor Group Appointee (or any ReplacementReplacement Appointee, as applicable) and (C) the exercise of statutory appraisal rights; provided that the foregoing shall not prevent the Ancora Investors Investor Group from responding to or complying with a validly issued legal process (and the Company agrees that this Section 2(a)(x) shall apply mutatis mutandis to the Company and its directors, officers, employees and agents (in each case, acting in such capacity) and Affiliates with respect to the Ancora InvestorsInvestor Group);
(xi) . encourage, facilitate, support, participate in or enter into any negotiations, agreements, arrangements or understandings with respect to to, the taking of any actions by any other Person in connection with the foregoing that is prohibited to be taken by the Ancora Investors Investor Group (except as set forth in Section 1);; or
(xii) . request that the Company, directly or indirectly, amend or waive any provision of this Section 2 (included including this clause (a)(xii)), other than through non-public communications with the Company that would not reasonably be expected to trigger public disclosure obligations for any of the Parties. The foregoing provisions of this Section 2(a) shall not be deemed to prevent any member of the Ancora Investors Investor Group from (i) communicating privately with the Board or any of the Company’s executive officers regarding any matter, so long as such communications are not intended to, and would not reasonably be expected to, require the Company or any Ancora member of the Investor Group to make public disclosure with respect thereto, (ii) communicating privately with stockholders shareholders of the Company and are Company; provided that such communication is not made with an intent to otherwise violate this Section 2(a), Section 3 or any other provision of this Agreement, (iii) identifying potential director candidates to serve on the Board so long as such actions do not create a public disclosure obligation for the Ancora Investors Investor Group or the Company, are not publicly disclosed by the Ancora Investors Investor Group or its Affiliates and are undertaken on a basis reasonably designed to be confidential; or (iv) making or sending private communications to investors in any member of the Ancora Investors Investor Group or any of their Affiliates or prospective investors in any member of the Ancora InvestorsInvestor Group or any of their Affiliates, provided that such statements or communications (1) are based on publicly available information; and (2) are not reasonably expected to be publicly disclosed and are understood by all parties to be confidential communications; or (v) taking any action to the extent necessary to comply with any law, rule or regulation or any action required by any governmental or regulatory authority or stock exchange that has, or may have, jurisdiction over any member of the Investor Group. Furthermore, for the avoidance of doubt, nothing in this Agreement shall be deemed to restrict in any way any member of the Ancora Appointees Board, including any Investor Group Appointee (or any ReplacementReplacement Appointee, as applicable) ), in the exercise of their his or her fiduciary duties under applicable law as directors a director of the Company.
(b) b. In respect of any vote or consent of the Company’s stockholders shareholders during the Standstill Period (whether at an annual or special stockholder shareholder meeting or pursuant to an action by written consent of the stockholdersshareholders) (each a “Stockholder Shareholder Meeting”), each the Investor Group and the members of the Ancora Investors Investor Group shall (i) appear at each such Stockholder Meeting or otherwise cause all Common Stock Beneficially Owned act in person or by each Ancora Investor proxy and their respective Affiliates to be counted as present for purposes of establishing a quorum and (ii) vote, or cause to be voted, vote all shares of Common Stock Beneficially Owned by each Ancora Investor and their respective Affiliates using the Company’s proxy card or voting instruction form (and shall not execute any proxy card or voting instruction form in respect of a Stockholder Meeting other than the proxy card and voting instruction form being solicited by or on behalf of the Board) them in accordance with the recommendation of the Board with respect to (xi) the election, removal and/or replacement of directors (a “Director Proposal”), (yii) the ratification of the appointment of the Company’s independent registered public accounting firm and (ziii) any other proposal submitted to the Company’s stockholders shareholders at a Stockholder Shareholder Meeting, in each case as such recommendation of the Board is set forth in the applicable definitive proxy statement filed in respect thereof; provided, however, that in the event Institutional Shareholder Services Inc. (“ISS”) and Glass Lewis & Co., LLC (“Glass Lewis”) make a recommendation that differs from the recommendation of the Board with respect to any proposal submitted to the stockholders shareholders at any Stockholder Shareholder Meeting (other than Director Proposals), the Ancora Investors Investor Group and the members of the Investor Group are permitted to vote the shares of Common Stock Beneficially Owned by them at such Stockholder Shareholder Meeting in accordance with the ISS and Glass Lewis recommendation; provided, further, that the Ancora Investors Investor Group and the members of the Investor Group shall be entitled to vote the shares of Common Stock Beneficially Owned by them in their sole discretion with respect to (A) any publicly announced proposal relating to any transaction pursuant to which any person is or becomes a Beneficial Owner, directly or indirectly, of securities of the Company representing more than 50% of the Company’s then-outstanding equity interests and voting power, a merger, stock-for-stock transaction, spin-off, acquisition, disposition of all or substantially all of the assets of the Company and its subsidiaries or other business combination involving the Company, (B) any financing, recapitalization, restructuring, share issuance or similar extraordinary transaction, transaction or (C) the implementation of takeover defenses not in existence as of the date of this Agreement, in each case, that requires a vote of the Company’s stockholdersshareholders.
Appears in 1 contract
Sources: Cooperation Agreement (C. H. Robinson Worldwide, Inc.)
Standstill and Voting. (a) a. Each of the Ancora Investor Investors agrees that during the Standstill Period, the Ancora Investors and the Ancora Investor Affiliates will not (and they will not assist or encourage others to) not to), directly or indirectly, in any manner, without prior written approval of the Board:
(i) i. take any actions, including acquiring, seeking to acquire or agreeing to acquire (directly or indirectly, whether by market purchases, private purchases, tender or exchange offer, through the acquisition of control of another person, by joining a “group” (within the meaning of Section 13(d)(3) of the Exchange Act), through swap or hedging transactions or otherwise) (A) ownership (Beneficial or otherwise) of any shares of Common Stock (or Beneficial Ownership thereof) or any securities convertible or exchangeable into or exercisable for any shares of Common Stock (or Beneficial Ownership thereof) (including any derivative securities or any other rights decoupled from the underlying securities of the Company) such that the Ancora Investors hold, directly or indirectly, would Beneficially Own in the aggregate in excess of 5.04.99% of the then-outstanding shares of Common Stock (the “Maximum Ownership Cap”); or (B) any interest in any indebtedness of the CompanyStock;
(ii) . other than in open market sale transactions where the identity of the purchaser is not known, sell, offer, or agree to sell, directly or indirectly, through swap or hedging transactions or otherwise, the securities of the Company or any rights decoupled from the underlying securities held by the Ancora Investors to any person or entity not (A) a party to this Agreement, (B) a member of the Board, (C) an officer of the Company or (D) an Affiliate of the Ancora Investors (any person or entity not set forth in clauses (A)-(D) shall be referred to as a “Third Party”) that would result in such Third Party, together with its Affiliates, owning, controlling or otherwise having any, beneficial or other ownership interest representing in the aggregate in excess of 5.04.99% of the shares of Common Stock outstanding at such time;
(iii) (A) advise or knowingly encourage or influence any other Person or knowingly assist any third party in so encouraging, assisting or influencing any other Person with respect to the giving or withholding of any proxy, consent or other authority to vote or in conducting any type of referendum (other than such encouragement, advice or influence that is consistent with the Board’s recommendation in connection with such matter) or (B) advise, influence or encourage any Person with respect to, or effect or seek to effect, whether alone or in concert with others, the election, nomination or removal of a director other than as permitted by Section 1;
(iv) . solicit proxies or written consents of stockholders or conduct any other type of referendum (binding or non-binding) (including any “withhold,” “vote no” or similar campaign) with respect to the shares of Common Stock, or from the holders of the shares of Common Stock, or become a “participant” (as such term is defined in Instruction 3 to Item 4 of Schedule 14A promulgated under the Exchange Act) in or knowingly encourage or assist any third party in any “solicitation” of any proxy, consent or other authority (as such terms are defined under the Exchange Act) to vote any shares of Common Stock (other than any encouragement, advice or influence that is consistent with the Board’s recommendation in connection with such matter);
(v) (A) form, join or in any other way participate in any partnership, limited partnership, syndicate or a “group” with respect to any shares of Common Stock (other than a “group” solely consisting of the Ancora Investors; provided, however, that an Affiliate of an Investors or Ancora Investor will only be permitted to join the “group” following the execution of this Agreement, so long as (x) any such Affiliate agrees to be bound by the terms and conditions of this Agreement and (y) such joining would not result in the Ancora Investors’ “group” Beneficially Owning in the aggregate in excess of the Maximum Ownership CapAffiliates), (B) grant any proxy, consent or other authority to vote with respect to any matters to be voted on by the Company’s stockholders (other than to the named proxies included in the Company’s proxy card for any Stockholder Meeting (as defined below) or in accordance with Section 2(b)) or (C) agree to deposit or deposit any shares of Common Stock or any securities convertible or exchangeable into or exercisable for any such shares of Common Stock in any voting trust, agreement or similar arrangement (other than (I) to the named proxies included in the Company’s proxy card for any Stockholder Meeting, (II) customary brokerage accounts, margin accounts, prime brokerage accounts and the like or (III) any agreement solely among the Ancora InvestorsInvestors or Ancora Investor Affiliates);
(vi) . separately or in conjunction with any third party in which it is or proposes to be either a principal, partner or financing source or is acting or proposes to act as broker or agent for compensation, propose (publicly or privately, with or without conditions), indicate an interest in or effect, effect any tender offer or exchange offer, merger, acquisition, reorganization, restructuring, recapitalization or other business combination involving the Company or any of its subsidiaries or the assets or businesses of the Company or any of its subsidiaries or actively encourage or initiate or support any other third party in any such activity; provided, however, that the Ancora Investors and Ancora Investor Affiliates shall be permitted to (A) sell or tender their shares of Common Stock, and otherwise receive consideration, pursuant to any such transaction transaction, including the Mergers, and (B) vote on any such transaction transaction, including the Mergers, in accordance with Section 2(b);
(vii) (IA) nominate, recommend for nomination or give notice of an intent to nominate or recommend for nomination a person for election at any Stockholder Meeting at which the Company’s directors are to be elected or (II) (AB)(I) present at any Stockholder Meeting any proposal (pursuant to Rule 14a-8 or otherwise) for consideration for action by the stockholders or (BII) call or seek to call, or request the call of, alone or in concert with others, or support another stockholder’s call for, any meeting of stockholders, whether or not such a meeting is permitted by the Company’s organizational documents;
(viii) . take any action in support of or make any proposal or request that constitutes: (A) controlling, changing or influencing the Board, management or policies of the Company, including any plans or proposals to change the number or term of directors or the removal of any directors, or to fill any vacancies on the Board; (B) any material change in the capitalization, stock repurchase programs and practices or dividend policy of the Company; (C) any other material change in the Company’s management, business or corporate structure; (D) seeking to have the Company waive or make amendments or modifications to the Company’s charter or charter, the Company’s Amended and Restated Bylaws (the “Bylaws”) or any of the Company Policies (each as may be amended from time to time), or other actions that may impede or facilitate the acquisition of control of the Company by any person; (E) causing a class of securities of the Company to be delisted from, or to cease to be authorized to be quoted on, any securities exchange; or (F) causing a class of securities of the Company to become eligible for termination of registration pursuant to Section 12(g)(4) of the Exchange Act, in each case with respect to the foregoing clauses (A) through (F), except as set forth in Section 1;
(ix) . make any request for stockholder list materials or other books and records of the Company under Section 220 of the Delaware General Corporation Law or otherwise; provided that if any Ancora Appointee New Director (or any ReplacementReplacement New Director, as applicable) makes such a request solely in such Ancora AppointeeNew Director’s capacity as a director of the Company in a manner consistent with his or her fiduciary duties to the Company, such material and other books and records may not be shared with any member of the Ancora InvestorsInvestors or any Ancora Investor Affiliate, notwithstanding any other provision of this Agreement;
(x) except in the case of fraud by the Company, x. institute, solicit, join (as a party) or knowingly assist any litigation, arbitration or other proceeding against the Company or any of its current or former directors or officers (including derivative actions), other than (A) litigation by the Ancora Investors to enforce the provisions of this Agreement, (B) counterclaims with respect to any proceeding initiated by, or on behalf of, the Company or its Affiliates against the Ancora Investors or any Ancora Appointee New Director (or any ReplacementReplacement New Director, as applicable) and (C) the exercise of statutory appraisal rights; provided that the foregoing shall not prevent the Ancora Investors from responding to or complying with a validly issued legal process (and the Company agrees that this Section 2(a)(x) shall apply mutatis mutandis to the Company and its directors, officers, employees and agents (in each case, acting in such capacity) and Affiliates with respect to the Ancora Investors);
(xi) . encourage, facilitate, support, participate in or enter into any negotiations, agreements, arrangements or understandings with respect to to, the taking of any actions by any other Person in connection with the foregoing that is prohibited to be taken by the Ancora Investors (except as set forth in Section 1);; or
(xii) . request that the Company, directly or indirectly, amend or waive any provision of this Section 2 (included including this clause (a)(xii)), other than through non-public communications with the Company that would not reasonably be expected to trigger public disclosure obligations for any of the Parties. The foregoing provisions of this Section 2(a) shall not be deemed to prevent any member of the Ancora Investors from (i) communicating privately with the Board or any of the Company’s executive officers regarding any matter, so long as such communications are not intended to, and would not reasonably be expected to, require the Company or any Ancora Investor to make public disclosure with respect thereto, (ii) communicating privately with stockholders of the Company and which communications are not made with an intent to otherwise violate this Section 2(a), Section 3 or any other provision of this Agreement, (iii) identifying potential director candidates to serve on the Board so long as such actions do not create a public disclosure obligation for the Ancora Investors or the Company, are not publicly disclosed by the Ancora Investors or its Affiliates and are undertaken on a basis reasonably designed to be confidential; or (iv) making or sending private communications to investors in any member of the Ancora Investors or any of their Affiliates or prospective investors in any member of the Ancora InvestorsInvestors or any of their Affiliates, provided that such statements or communications (1) are based on publicly available information; and (2) are not reasonably expected to be publicly disclosed and are understood by all parties to be confidential communications; or (v) taking any action to the extent necessary to comply with any law, rule or regulation or any action required by any governmental or regulatory authority or stock exchange that has, or may have, jurisdiction over any of the Ancora Investors. Furthermore, for the avoidance of doubt, nothing in this Agreement shall be deemed to restrict in any way the Ancora Appointees New Director Candidates (or any ReplacementReplacement New Director, as applicable) in the exercise of their fiduciary duties under applicable law as directors a director of the Company.
(b) b. In respect of any vote or consent of the Company’s stockholders during the Standstill Period (whether at an annual or special stockholder meeting (including the Company Stockholders Meeting)) or pursuant to an action by written consent of the stockholders) (each a “Stockholder Meeting”), each of the Ancora Investors shall (i) appear at each such Stockholder Meeting or otherwise cause all Common Stock Beneficially Owned act in person or by each Ancora Investor proxy and their respective Affiliates to be counted as present for purposes of establishing a quorum and (ii) vote, or cause to be voted, vote all shares of Common Stock Beneficially Owned by each Ancora Investor and their respective Affiliates using the Company’s proxy card or voting instruction form (and shall not execute any proxy card or voting instruction form in respect of a Stockholder Meeting other than the proxy card and voting instruction form being solicited by or on behalf of the Board) them in accordance with the recommendation of the Board with respect to (xi) the election, removal and/or replacement of directors (a “Director Proposal”), (yii) the ratification of the appointment of the Company’s independent registered public accounting firm and (ziii) any other proposal submitted to the Company’s stockholders at a Stockholder Meeting, in each case as such recommendation of the Board is set forth in the applicable definitive proxy statement filed in respect thereof; provided, however, that that, in the event that each of Institutional Shareholder Services Inc. (“ISS”) and Glass Lewis & Co., LLC (“Glass Lewis”) make a recommendation that differs from the recommendation of the Board with respect to any proposal submitted to the stockholders at any Stockholder Meeting (other than Director ProposalsProposals or any proposal submitted to the stockholders at the Company Stockholders Meeting (which shall be subject to the immediately following sentence)), the Ancora Investors are permitted to vote the shares of Common Stock Beneficially Owned by them at such Stockholder Meeting in accordance with the ISS and Glass Lewis recommendation; provided, further, that that, except as provided in the immediately following sentence, the Ancora Investors shall be entitled to vote the shares of Common Stock Beneficially Owned by them in their sole discretion with respect to (A) any publicly announced proposal relating to any transaction pursuant to which any person is or becomes a Beneficial Owner, directly or indirectly, of securities of the Company representing more than 50% of the Company’s then-outstanding equity interests and voting power, a merger, stock-for-stock transaction, spin-off, acquisition, disposition of all or substantially all of the assets of the Company and its subsidiaries or other business combination involving the Company, (B) any financing, recapitalization, restructuring, share issuance or similar extraordinary transaction, transaction or (C) the implementation of takeover defenses not in existence as of the date of this Agreement, in each case, that requires a vote of the Company’s stockholders. In furtherance of the foregoing and notwithstanding anything to the contrary therein, the Ancora Investors hereby irrevocably commit to appear or act in person or by proxy and vote all shares of Common Stock Beneficially Owned by them in accordance with the recommendation of the Board with respect to all proposals submitted to the Company Stockholders at the Company Stockholders Meeting, including (a) any proposal to adopt the Merger Agreement and thereby approve the transactions contemplated by the Merger Agreement, including the Mergers (the “Merger Proposal”), (b) any proposal to approve, on a nonbinding advisory basis, the compensation that may be paid or become payable to named executive officers of the Company that is based on or otherwise relates to the transactions contemplated by the Merger Agreement (the “Compensation Proposal”), and (c) any proposal to approve the adjournment of the Company Stockholders Meeting, if necessary or appropriate, to solicit additional proxies if there are insufficient votes at the time of the Company Stockholders Meeting to approve the Merger Proposal; provided that, solely with respect to the Compensation Proposal, in the event that each of ISS and ▇▇▇▇▇ ▇▇▇▇▇ makes a recommendation that differs from the recommendation of the Board with respect to the Compensation Proposal, the Ancora Investors shall be permitted to vote the shares of Common Stock Beneficially Owned by them at the Company Stockholders Meeting in accordance with the ISS and Glass Lewis recommendation with respect to the Compensation Proposal.
Appears in 1 contract
Sources: Cooperation Agreement (IAA, Inc.)
Standstill and Voting. (a) Each a. The Ancora Investor agrees Parties each agree that during the Standstill Period, the Ancora Investors Parties and the Ancora Affiliates will not (and they will not assist or encourage others to) not to), directly or indirectly, in any manner, without prior written approval of the Board:
(i) i. take any actions, including acquiring, seeking to acquire or agreeing to acquire (directly or indirectly, whether by market purchases, private purchases, tender or exchange offer, through the acquisition of control of another person, by joining a “group” (within the meaning of Section 13(d)(3) of the Exchange Act), through swap or hedging transactions or otherwise) (A) ownership (Beneficial or otherwise) of any shares of Common Stock (or Beneficial Ownership thereof) or any securities convertible or exchangeable into or exercisable for any shares of Common Stock (or Beneficial Ownership thereof) (including any derivative securities or any other rights decoupled from the underlying securities of the Company) such that the Ancora Investors hold, directly or indirectly, Parties would Beneficially Own in excess of 5.09.9% of the then-outstanding shares of Common Stock (the “Maximum Ownership Cap”); or (B) any interest in any indebtedness of the CompanyStock;
(ii) . other than in open market sale transactions where the identity of the purchaser is not known, sell, offer, or agree to sell, directly or indirectly, through swap or hedging transactions or otherwise, the securities of the Company or any rights decoupled from the underlying securities held by the Ancora Investors Parties to any person or entity not not
(A) a party to this Agreement, (B) a member of the Board, (C) an officer of the Company or (D) an Affiliate of the Ancora Investors Parties (any person or entity not set forth in clauses (A)-(D) shall be referred to as a “Third Party”) that would result in such Third Party, together with its Affiliates, owning, controlling or otherwise having any, beneficial or other ownership interest representing in the aggregate in excess of 5.04.9% of the shares of Common Stock outstanding at such time;
(iii) (A) advise or knowingly encourage or influence any other Person or knowingly assist any third party in so encouraging, assisting or influencing any other Person with respect to the giving or withholding of any proxy, consent or other authority to vote or in conducting any type of referendum (other than such encouragement, advice or influence that is consistent with the Board’s recommendation in connection with such matter) or (B) advise, influence or encourage any Person with respect to, or effect or seek to effect, whether alone or in concert with others, the election, nomination or removal of a director other than as permitted by Section 1;
(iv) . solicit proxies or written consents of stockholders shareholders or conduct any other type of referendum (binding or non-binding) (including any “withhold,” “vote no” or similar campaign) with respect to the shares of Common Stock, or from the holders of the shares of Common Stock, or become a “participant” (as such term is defined in Instruction 3 to Item 4 of Schedule 14A promulgated under the Exchange Act) in or knowingly encourage or assist any third party in any “solicitation” of any proxy, consent or other authority (as such terms are defined under the Exchange Act) to vote any shares of Common Stock (other than any encouragement, advice or influence that is consistent with the Board’s recommendation in connection with such matter);
(v) (A) form, join or in any other way participate in any partnership, limited partnership, syndicate or a “group” with respect to any shares of Common Stock (other than a “group” solely consisting of the Ancora Investors; provided, however, that an Affiliate of an Parties or Ancora Investor will only be permitted to join the “group” following the execution of this Agreement, so long as (x) any such Affiliate agrees to be bound by the terms and conditions of this Agreement and (y) such joining would not result in the Ancora Investors’ “group” Beneficially Owning in the aggregate in excess of the Maximum Ownership CapAffiliates), (B) grant any proxy, consent or other authority to vote with respect to any matters to be voted on by the Company’s stockholders shareholders (other than to the named proxies included in the Company’s proxy card for any Stockholder Shareholder Meeting (as defined below) or in accordance with Section 2(b)) or (C) agree to deposit or deposit any shares of Common Stock or any securities convertible or exchangeable into or exercisable for any such shares of Common Stock in any voting trust, agreement or similar arrangement (other than (I) to the named proxies included in the Company’s proxy card for any Stockholder Shareholder Meeting, (II) customary brokerage accounts, margin accounts, prime brokerage accounts and the like or (III) any agreement solely among the Ancora InvestorsParties or Ancora Affiliates);
(; vi) . separately or in conjunction with any third party in which it is or proposes to be either a principal, partner or financing source or is acting or proposes to act as broker or agent for compensation, propose (publicly or privately, with or without conditions), indicate an interest in or effect, effect any tender offer or exchange offer, merger, acquisition, reorganization, restructuring, recapitalization or other business combination involving the Company or any of its subsidiaries or the assets or businesses of the Company or any of its subsidiaries or actively encourage or initiate or support any other third party in any such activity; provided, however, that the Ancora Investors Parties and Ancora Affiliates shall be permitted to (Ai) sell or tender their shares of Common Stock, and otherwise receive consideration, pursuant to any such transaction and (Bii) vote on any such transaction in accordance with Section 2(b);
(vii) (I) nominate, recommend for nomination or give notice of an intent to nominate or recommend for nomination a person for election at any Stockholder Meeting at which the Company’s directors are to be elected or (II) (A) present at any Stockholder Shareholder Meeting any proposal (pursuant to Rule 14a-8 or otherwise) for consideration for action by the stockholders shareholders or (B) call or seek to call, or request the call of, alone or in concert with others, or support another stockholdershareholder’s call for, any meeting of stockholdersshareholders, whether or not such a meeting is permitted by the Company’s organizational documents;
(viii) . take any action in support of or make any proposal or request that constitutes: (A) controlling, changing or influencing the Board, management or policies of the Company, including any plans or proposals to change the number or term of directors or the removal of any directors, or to fill any vacancies on the Board; (B) any material change in the capitalization, stock repurchase programs and practices or dividend policy of the Company; (C) any other material change in the Company’s management, business or corporate structure; (D) seeking to have the Company waive or make amendments or modifications to the Company’s charter or Bylaws or any of the Company Policies (each as may be amended from time to time)bylaws, or other actions that may impede or facilitate the acquisition of control of the Company by any person; (E) causing a class of securities of the Company to be delisted from, or to cease to be authorized to be quoted on, any securities exchange; or (F) causing a class of securities of the Company to become eligible for termination of registration pursuant to Section 12(g)(4) of the Exchange Act, in each case with respect to the foregoing clauses (A) through (F), except as set forth in Section 1; provided, however, that following the date that is thirty (30) days prior to the deadline for the submission of shareholder nominations for the Company’s 2022 annual meeting of shareholders (the “2022 Annual Meeting”), the Ancora Parties and the Ancora Affiliates may speak to potential director candidates in connection with the 2022 Annual Meeting so long as such conversations do not create a public disclosure obligation for the Ancora Parties or the Company and are undertaken on a basis reasonably designed to be maintained as confidential and solely between the Ancora Parties and such director candidate and otherwise in accordance in all material respects with the Ancora Parties’ normal practices in the circumstances;
(ix) . make any request for stockholder shareholder list materials or other books and records of the Company under Section 220 ▇▇-▇▇-▇▇▇ of the Delaware General Corporation Law Tennessee Code or otherwise; provided that if any Ancora Appointee (or any ReplacementReplacement Appointee, as applicable) makes such a request solely in such Ancora Appointee’s capacity as a director of the Company in a manner consistent with his (or her her) fiduciary duties to the Company, such material and other books and records may not be shared with any member other Ancora Party, Member of the Ancora InvestorsParties or Ancora Affiliate, notwithstanding any other provision of this Agreement;
(x) except in the case of fraud by the Company, ; x. institute, solicit, join (as a party) or knowingly assist any litigation, arbitration or other proceeding against the Company or any of its current or former directors or officers (including derivative actions), other than (A) litigation by the Ancora Investors Parties to enforce the provisions of this Agreement, (B) counterclaims with respect to any proceeding initiated by, or on behalf of, the Company or its Affiliates against the Ancora Investors Parties or any Ancora Appointee (or any ReplacementReplacement Appointee, as applicable) and (C) the exercise of statutory appraisal rights; provided that the foregoing shall not prevent the Ancora Investors Parties from responding to or complying with a validly issued legal process (and the Company agrees that this Section 2(a)(x) shall apply mutatis mutandis to the Company and its directors, officers, employees and agents (in each case, acting in such capacity) and Affiliates with respect to the Ancora InvestorsParties);
(xi) . encourage, facilitate, support, participate in or enter into any negotiations, agreements, arrangements or understandings with respect to to, the taking of any actions by any other Person in connection with the foregoing that is prohibited to be taken by the Ancora Investors Parties (except as set forth in Section 1);
(xii) request that the Company, directly or indirectly, amend or waive any provision of this Section 2 (included this clause (a)(xii)), other than through non-public communications with the Company that would not reasonably be expected to trigger public disclosure obligations for any of the Parties. The foregoing provisions of this Section 2(a) shall not be deemed to prevent any member of the Ancora Investors from (i) communicating privately with the Board or any of the Company’s executive officers regarding any matter, so long as such communications are not intended to, and would not reasonably be expected to, require the Company or any Ancora Investor to make public disclosure with respect thereto, (ii) communicating privately with stockholders of the Company and are not made with an intent to otherwise violate this Section 2(a), Section 3 or any other provision of this Agreement, (iii) identifying potential director candidates to serve on the Board so long as such actions do not create a public disclosure obligation for the Ancora Investors or the Company, are not publicly disclosed by the Ancora Investors and are undertaken on a basis reasonably designed to be confidential; or (iv) making or sending private communications to investors in any member of the Ancora Investors or prospective investors in any member of the Ancora Investors, provided that such statements or communications (1) are based on publicly available information; and (2) are not reasonably expected to be publicly disclosed and are understood by all parties to be confidential communications. Furthermore, for the avoidance of doubt, nothing in this Agreement shall be deemed to restrict in any way the Ancora Appointees (or any Replacement, as applicable) in the exercise of their fiduciary duties under applicable law as directors of the Company.
(b) In respect of any vote or consent of the Company’s stockholders during the Standstill Period (whether at an annual or special stockholder meeting or pursuant to an action by written consent of the stockholders) (each a “Stockholder Meeting”), each of the Ancora Investors shall (i) appear at each such Stockholder Meeting or otherwise cause all Common Stock Beneficially Owned by each Ancora Investor and their respective Affiliates to be counted as present for purposes of establishing a quorum and (ii) vote, or cause to be voted, all shares of Common Stock Beneficially Owned by each Ancora Investor and their respective Affiliates using the Company’s proxy card or voting instruction form (and shall not execute any proxy card or voting instruction form in respect of a Stockholder Meeting other than the proxy card and voting instruction form being solicited by or on behalf of the Board) in accordance with the recommendation of the Board with respect to (x) the election, removal and/or replacement of directors (a “Director Proposal”), (y) the ratification of the appointment of the Company’s independent registered public accounting firm and (z) any other proposal submitted to the Company’s stockholders at a Stockholder Meeting, in each case as such recommendation of the Board is set forth in the applicable definitive proxy statement filed in respect thereof; provided, however, that in the event Institutional Shareholder Services Inc. (“ISS”) and Glass Lewis & Co., LLC (“Glass Lewis”) make a recommendation that differs from the recommendation of the Board with respect to any proposal submitted to the stockholders at any Stockholder Meeting (other than Director Proposals), the Ancora Investors are permitted to vote the shares of Common Stock Beneficially Owned by them at such Stockholder Meeting in accordance with the ISS and Glass Lewis recommendation; provided, further, that the Ancora Investors shall be entitled to vote the shares of Common Stock Beneficially Owned by them in their sole discretion with respect to (A) any publicly announced proposal relating to any transaction pursuant to which any person is or becomes a Beneficial Owner, directly or indirectly, of securities of the Company representing more than 50% of the Company’s then-outstanding equity interests and voting power, a merger, stock-for-stock transaction, spin-off, acquisition, disposition of all or substantially all of the assets of the Company and its subsidiaries or other business combination involving the Company, (B) any financing, recapitalization, restructuring, share issuance or similar extraordinary transaction, (C) the implementation of takeover defenses not in existence as of the date of this Agreement, in each case, that requires a vote of the Company’s stockholders.or
Appears in 1 contract