Standstill and Voting. a. The Ancora Parties each agree that during the Standstill Period (as defined below), the Ancora Parties and the Ancora Affiliates will not (and they will not assist or encourage others to), directly or indirectly, in any manner, without prior written approval of the Board: i. take any actions, including acquiring, seeking to acquire or agreeing to acquire (directly or indirectly), whether by market purchases, private purchases, tender or exchange offer, through the acquisition of control of another person, by joining a “group” (within the meaning of Section 13(d)(3) of the Exchange Act), through swap or hedging transactions or otherwise, any shares of Common Stock (or Beneficial Ownership thereof) or any securities convertible or exchangeable into or exercisable for any shares of Common Stock (or Beneficial Ownership thereof) (including any derivative securities or any other rights decoupled from the underlying securities of the Corporation) such that the Ancora Parties would Beneficially Own in excess of 7.5% of the shares of Common Stock outstanding 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 Corporation or any rights decoupled from the underlying securities held by the Ancora Parties to any person or entity not (A) a party to this Agreement, (B) a member of the Board, (C) an officer of the Corporation or (D) an Affiliate of the Ancora Parties (any person or entity not set forth in the foregoing clauses (A)-(D) shall be referred to as a “Third Party”) that would result in such Third Party, together with its Affiliates, owning, controlling or otherwise having any beneficial or other ownership interest representing in the aggregate in excess of 2.0% of the shares of Common Stock outstanding at such time; (A) advise or knowingly encourage or influence any other Person or knowingly assist any third party in so encouraging, assisting or influencing any other Person with respect to the giving or withholding of any proxy, consent or other authority to vote or in conducting any type of referendum (other than such encouragement, advice or influence that is consistent with the Board’s recommendation in connection with such matter) or (B) advise, influence or encourage any Person with respect to, or effect or seek to effect, whether alone or in concert with others, the election, nomination or removal of a director; iv. solicit proxies or written consents of shareholders or conduct any other type of referendum (binding or non-binding) (including any “withhold,” “vote no” or similar campaign) with respect to the shares of Common Stock, or from the holders of the shares of Common Stock, or become a “participant” (as such term is defined in Instruction 3 to Item 4 of Schedule 14A promulgated under the Exchange Act) in or knowingly encourage or assist any third party in any “solicitation” of any proxy, consent or other authority (as such terms are defined under the Exchange Act) to vote any shares of Common Stock (other than any encouragement, advice or influence that is consistent with the Board’s recommendation in connection with such matter); (A) form, join or in any other way participate in a “group” with respect to any securities (other than a “group” solely consisting of the Ancora Parties or Ancora controlled Affiliates), (B) grant any proxy, consent or other authority to vote with respect to any matters to be voted on by the Corporation’s shareholders at any annual or special shareholder meeting or pursuant to an action by written consent of the shareholders (each a “Shareholder Meeting”), other than to the named proxies included in the Corporation’s proxy card for any Shareholder Meeting or in accordance with Section 2(b) or (C) agree to deposit or deposit any securities or any securities convertible or exchangeable into or exercisable for any such securities in any voting trust, agreement or similar arrangement (other than (I) to the named proxies included in the Corporation’s proxy card for any Shareholder Meeting, (II) customary brokerage accounts, margin accounts, prime brokerage accounts and the like or (III) any agreement solely among the Ancora Parties 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 any tender offer or exchange offer, merger, acquisition, division, reorganization, restructuring, recapitalization or other business combination involving the Corporation or any of its subsidiaries or the assets or businesses of the 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 Parties and Ancora Affiliates shall be permitted to (A) sell or tender their securities subject to applicable rules of the SEC and the New York Stock Exchange, and otherwise receive consideration, pursuant to any such transaction and (B) vote on any such transaction in accordance with Section 2(b); (A) nominate, recommend for nomination, or give notice of an intent to nominate or recommend for nomination a person for election at any Shareholder Meeting at which the Corporation’s directors are to be elected, (B) present at any Shareholder Meeting any proposal for consideration for action by the shareholders, or (C) call or seek to call, or request the call of, alone or in concert with others, or support another shareholder’s call for, any meeting of shareholders, whether or not such a meeting is permitted by the Corporation’s organizational documents; viii. take any action in support of or make any proposal or request that constitutes: (A) controlling, changing or influencing the Board, management or policies of the Corporation, including any plans or proposals to change the number or term of directors or the removal of any directors, or to fill any vacancies on the Board; (B) any material change in the capitalization, stock repurchase programs and practices or dividend policy of the Corporation; (C) any other material change in the Corporation’s management, business or corporate structure; (D) seeking to have the Corporation waive or make amendments or modifications to the Corporation’s charter or bylaws or take other actions that may impede or facilitate the acquisition of control of the Corporation by any Person; (E) causing a class of securities of the 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 Corporation to become eligible for termination of registration pursuant to Section 12(g)(4) of the Exchange Act, in each case with respect to the foregoing clauses (A) through (F); ix. make any request for shareholder list materials or other books and records of the Corporation under Chapter 52 Section 2 (IC 23-1-52-2) of the IBCL, or otherwise; provided that if any New Independent Director (or any Replacement Director, as applicable) makes such a request solely in such New Independent Director’s (or any Replacement Director’s, as applicable) capacity as a director in a manner consistent with his or her fiduciary duties to the Corporation, such material and other books and records may not be shared with any other Ancora Party, Member of the Ancora Parties or any Ancora Affiliate, notwithstanding any other provision of this Agreement; x. 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 Parties; or xi. request that the Corporation, directly or indirectly, amend or waive any provision of this Section 2 (including this clause (a)(xi)), other than through non-public communications with the Corporation that would not reasonably be expected to trigger public disclosure obligations for any Party. The foregoing provisions of this Section 2(a) shall not be deemed to prevent any Member of the Ancora Parties from (i) communicating privately with the Board or any of the Corporation’s executive officers regarding any matter, so long as such communications are not intended to, and would not reasonably be expected to, require the Corporation or any Member of the Ancora Parties to make public disclosure with respect thereto; (ii) communicating privately with shareholders of the Corporation and others in a manner that does not otherwise violate this Section 2(a), Section 3 hereof or any other provision of this Agreement; (iii) only during the period thirty (30) days prior to the termination of the Standstill Period, identifying potential director candidates to serve on the Board, so long as such actions do not create a public disclosure obligation for the Ancora Parties or the Corporation, are not publicly disclosed by the Ancora Parties or its Affiliates and are undertaken on a basis reasonably designed to be confidential; (iv) making or sending private communications to investors in any Member of the Ancora Parties or any of their Affiliates, provided that such statements or communications (1) are based on publicly available information, (2) are not reasonably expected to be publicly disclosed and are understood by all parties to be confidential communications, and (3) pertain to the investor’s investment in the Ancora Parties or any of their Affiliates; or (v) taking any action to the extent necessary to comply with any law, rule or regulation or any action required by any governmental or regulatory authority or stock exchange that has, or may have, jurisdiction over any Member of the Ancora Parties. Furthermore, for the avoidance of doubt, nothing in this Agreement shall be deemed to restrict in any way any New Independent Director (or any Replacement Director, as applicable) in the exercise of his or her fiduciary duties under applicable law as a director of the Corporation. b. In respect of any vote or consent of the Corporation’s shareholders during the Standstill Period (whether at an annual or special shareholder meeting or pursuant to an action by written consent of the shareholders), the Ancora Parties and the Members of the Ancora Parties shall appear or act in person or by proxy and vote all shares of Common Stock Beneficially Owned by them in accordance with the recommendation of the Board with respect to (i) the election, removal and/or replacement of directors (a “Director Proposal”), (ii) the ratification of the appointment of the Corporation’s independent registered public accounting firm and (iii) any other proposal submitted to the Corporation’s shareholders at a Shareholder Meeting, in each case as such recommendation of the Board is set forth in the applicable definitive proxy statement filed in respect thereof; provided, however, that in the event Institutional Shareholder Services Inc. (“ISS”) and Glass Lewis & Co., LLC (“Glass Lewis”) make a recommendation that differs from the recommendation of the Board with respect to any proposal submitted to the shareholders at any Shareholder Meeting (other than Director Proposals), the Ancora Parties and the Members of the Ancora Parties are permitted to vote the shares of Common Stock Beneficially Owned by them at such Shareholder Meeting in accordance with the ISS or G▇▇▇▇ ▇▇▇▇▇ recommendation; provided, further, that the Ancora 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 (A) to any publicly announced proposal relating to any transaction pursuant to which any person is or becomes a Beneficial Owner, directly or indirectly, of securities of the Corporation representing more than 50% of the Corporation’s then outstanding equity interest and voting power, a merger, stock for stock transaction, acquisition, disposition of all or substantially all of the assets of the Corporation and its subsidiaries or other business combination involving the Corporation or (B) any financing, recapitalization, restructuring, share issuance or similar extraordinary transaction, in each case, that requires a vote of the Corporation’s shareholders.
Appears in 1 contract
Standstill and Voting. a. The Ancora Parties each agree (a) Each Investor agrees that during the Standstill Period period beginning on the date of this Agreement and ending on the later of such time as (as defined below)i) the Loans have been repaid in full and the Exit Fee has been paid, and (ii) the Investors Beneficially Own, in the aggregate, a number of Covered Securities representing (or convertible, exchangeable, redeemable or exerciseable into) less than ten percent (10%) of the total number of Common Shares of the Company on a fully diluted basis (such later period, the Ancora Parties and “Investor Covenant Period”); then, without the Ancora Affiliates prior written consent of the Company, each Investor will not (and they at any time, nor will not assist it cause or encourage others permit any of its Non-Excluded Affiliates to), except as expressly permitted by the Transaction Documents, acquire, make any proposal or offer to acquire, or propose or facilitate the acquisition of, directly or indirectly, in by purchase or otherwise, record or Beneficial Ownership of any manneradditional equity securities of the Company, including Common Shares, or securities of the Company convertible, exchangeable, redeemable or exercisable into such equity securities (other than Common Shares issued or issuable as a result of any stock split, stock dividend or distribution, subdivision, recapitalization or other similar transaction of Common Shares, upon exchange of Common Partnership Units or under the Warrant Agreement). During the Investor Covenant Period, without the prior written approval consent of the Board:
i. take Company, each Investor agrees that it will not at any actionstime, including acquiringnor will it cause or permit any of its Non-Excluded Affiliates to, seeking to acquire or agreeing to acquire (except as expressly permitted by the Transaction Documents, directly or indirectly:
(i) enter into, agree to enter into, commence or submit any merger, consolidation, tender offer, exchange offer, business combination, share exchange, recapitalization, restructuring or other extraordinary transaction involving the Company, any subsidiary or division of the Company (including, but not limited to, the Operating Partnership), whether or any of their respective securities or assets or take any action that would reasonably be expected to require the Company to make a public announcement regarding the possibility of any such transaction;
(ii) tender into a tender or exchange offer commenced by market purchasesa third party other than a tender or exchange offer that the Board has affirmatively publicly recommended to the Company’s stockholders that such stockholders tender into such offer and has not publicly withdrawn or changed such recommendation (and in the case of such a withdrawal or change of recommendation, private purchases, it shall not be a breach of this clause (ii) if the tendered or exchanged securities are withdrawn prior to the expiration of such tender or exchange offer);
(x) make, through or in any way participate in, any “solicitation” of “proxies” (as such terms are used in the acquisition proxy rules of control the SEC promulgated pursuant to Section 14 of another personthe Exchange Act) to vote any securities of the Company under any circumstances, or deposit any securities of the Company in a voting trust or subject them to a voting agreement, pooling agreement or other agreement of similar effect, (y) seek to advise or influence any Person with respect to the voting of any securities of the Company or the Operating Partnership (other than to vote as recommended by joining Board), or (z) grant any proxy with respect to any Common Shares (other than (A) in connection with satisfying each Investor’s obligations under Section 3.1(b) or (B) otherwise to the Company or a Person specified by the Company in a proxy card provided to stockholders of the Company by or on behalf of the Company) or other equity securities of the Company;
(iv) form, join or in any way participate in a “group” (within the meaning as that term is used for purposes of Rule 13d-5 or Section 13(d)(3) of the Exchange Act), through swap or hedging transactions or otherwise, any shares of Common Stock (or Beneficial Ownership thereof) or any securities convertible or exchangeable into or exercisable for any shares of Common Stock (or Beneficial Ownership thereof) (including any derivative securities or any other rights decoupled from the underlying securities of the Corporation) such that the Ancora Parties would Beneficially Own in excess of 7.5% of the shares of Common Stock outstanding 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 Corporation or any rights decoupled from the underlying securities held by the Ancora Parties to any person or entity not (A) a party to this Agreement, (B) a member of the Board, (C) an officer of the Corporation or (D) an Affiliate of the Ancora Parties (any person or entity not set forth in the foregoing clauses (A)-(D) shall be referred to as a “Third Party”) that would result in such Third Party, together with its Affiliates, owning, controlling or otherwise having any beneficial or other ownership interest representing in the aggregate in excess of 2.0% of the shares of Common Stock outstanding at such time;
(A) advise or knowingly encourage or influence any other Person or knowingly assist any third party in so encouraging, assisting or influencing any other Person with respect to the giving or withholding of any proxy, consent or other authority to vote or in conducting any type of referendum (other than such encouragementwith any other Investor, 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 toAffiliate of any Investor, or effect any entities, funds, accounts, or seek to effectclients managed, whether alone sponsored or in concert with others, the election, nomination advised by OCM or removal any of a director;
iv. solicit proxies or written consents of shareholders or conduct any other type of referendum (binding or non-binding) (including any “withhold,” “vote no” or similar campaignits Affiliates) with respect to the shares any of Common Stock, or from the holders securities of the shares Company;
(v) form or publicly disclose any intention, plan or arrangement to change any of Common Stock, or become a “participant” (as such term is defined in Instruction 3 to Item 4 the members 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 Board (other than pursuant to its rights hereunder), any encouragement, advice or influence that is consistent with the Board’s recommendation in connection with such matter);
(A) form, join or in any other way participate in a “group” with respect to any securities (other than a “group” solely consisting of the Ancora Parties or Ancora controlled Affiliates), (B) grant any proxy, consent or other authority to vote with respect to any matters to be voted on by the Corporation’s shareholders at any annual or special shareholder meeting or pursuant to an action by written consent executive officers of the shareholders (each a “Shareholder Meeting”)Company, the Charter or the Bylaws, other than to the named proxies included in Company or the Corporation’s proxy card for Board or their Representatives (it being understood that this clause (v) shall not prohibit any Shareholder Meeting or in accordance with Section 2(b) or (C) agree to deposit or deposit Investor from voting any securities or any securities convertible or exchangeable into or exercisable for any such securities in any voting trust, agreement or similar arrangement (other than (I) to the named proxies included in the Corporation’s proxy card for any Shareholder Meeting, (II) customary brokerage accounts, margin accounts, prime brokerage accounts and the like or (III) any agreement solely among the Ancora Parties 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 any tender offer or exchange offer, merger, acquisition, division, reorganization, restructuring, recapitalization or other business combination involving the Corporation or any of its subsidiaries or the assets or businesses of the Corporation or any of Company in its subsidiaries or actively encourage or initiate or support any other third party in any such activity; providedsole discretion, however, that the Ancora Parties and Ancora Affiliates shall be permitted to (A) sell or tender their securities but subject to applicable rules of the SEC and the New York Stock Exchange, and otherwise receive consideration, pursuant to any such transaction and (B) vote on any such transaction in accordance with Section 2(b3.1(b));
(Avi) nominatecall, recommend for nominationrequest the calling of, or give notice otherwise seek or submit a written request for the calling of an intent to nominate a special meeting of, or recommend for nomination a person for election at initiate any Shareholder Meeting at which the Corporation’s directors are to be elected, (B) present at any Shareholder Meeting any stockholder proposal for consideration for the election of any director or any other action by by, the shareholders, or (C) call or seek to call, or request stockholders of the call of, alone or in concert with others, or support another shareholder’s call for, any meeting of shareholders, whether or not such a meeting is permitted by the Corporation’s organizational documentsCompany;
viii. take any action (vii) make a public announcement in support connection with seeking to influence or control the management of or make any proposal or request that constitutes: (A) controlling, changing or influencing the Board, management or policies the policies, affairs or strategy of the Corporation, including any plans or proposals to change the number or term of directors Company 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 Corporation; (C) any other material change in the Corporation’s management, business or corporate structure; (D) seeking to have the Corporation waive or make amendments or modifications to the Corporation’s charter or bylaws or take other actions that may impede or facilitate the acquisition of control of the Corporation by any Person; (E) causing a class of securities of the 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 Corporation to become eligible for termination of registration pursuant to Section 12(g)(4) of the Exchange Act, in each case with respect to the foregoing clauses (A) through (F)Operating Partnership;
ix. make (viii) form or disclose any request for shareholder list materials intention, plan or other books and records of arrangement inconsistent with the Corporation under Chapter 52 Section 2 (IC 23-1-52-2) of the IBCL, or otherwise; provided that if any New Independent Director (or any Replacement Director, as applicable) makes such a request solely in such New Independent Director’s (or any Replacement Director’s, as applicable) capacity as a director in a manner consistent with his or her fiduciary duties to the Corporation, such material and other books and records may not be shared with any other Ancora Party, Member of the Ancora Parties or any Ancora Affiliate, notwithstanding any other provision of this Agreementforegoing;
x. (ix) advise, assist or encourage, facilitate, support, participate in or enter into any negotiationsarrangements with, agreements, arrangements or understandings with respect to the taking of any actions by any other Person Persons in connection with any of the foregoing that is prohibited to be taken by the Ancora Partiesmatters set forth in this Section 3.1(a); or
xi. (x) publicly request that the Corporation, directly or indirectly, Company to amend or waive any provision of this Section 2 3.1 (including this clause (a)(xix)), other than through non-public communications with the Corporation that would not reasonably be expected to trigger public disclosure obligations for any Party. The foregoing provisions of this Section 2(a) shall not be deemed to prevent any Member of the Ancora Parties from (i) communicating privately with the Board or any of the Corporation’s executive officers regarding any matter, so long as such communications are not intended to, and would not reasonably be expected to, require the Corporation or any Member of the Ancora Parties to make public disclosure with respect thereto; (ii) communicating privately with shareholders of the Corporation and others in a manner that does not otherwise violate this Section 2(a), Section 3 hereof or any other provision of this Agreement; (iii) only during the period thirty (30) days prior to the termination of the Standstill Period, identifying potential director candidates to serve on the Board, so long as such actions do not create a public disclosure obligation for the Ancora Parties or the Corporation, are not publicly disclosed by the Ancora Parties or its Affiliates and are undertaken on a basis reasonably designed to be confidential; (iv) making or sending private communications to investors in any Member of the Ancora Parties or any of their Affiliates, provided that such statements or communications (1) are based on publicly available information, (2) are not reasonably expected to be publicly disclosed and are understood by all parties to be confidential communications, and (3) pertain to the investor’s investment in the Ancora Parties or any of their Affiliates; or (v) taking any action to the extent necessary to comply with any law, rule or regulation or any action required by any governmental or regulatory authority or stock exchange that has, or may have, jurisdiction over any Member of the Ancora Parties. Furthermore, for the avoidance of doubt, nothing in this Agreement shall be deemed to restrict in any way any New Independent Director (or any Replacement Director, as applicable) in the exercise of his or her fiduciary duties under applicable law as a director of the Corporation.
b. In respect of any vote or consent of the Corporation’s shareholders during the Standstill Period (whether at an annual or special shareholder meeting or pursuant to an action by written consent of the shareholders), the Ancora Parties and the Members of the Ancora Parties shall appear or act in person or by proxy and vote all shares of Common Stock Beneficially Owned by them in accordance with the recommendation of the Board with respect to (i) the election, removal and/or replacement of directors (a “Director Proposal”), (ii) the ratification of the appointment of the Corporation’s independent registered public accounting firm and (iii) any other proposal submitted to the Corporation’s shareholders at a Shareholder Meeting, in each case as such recommendation of the Board is set forth in the applicable definitive proxy statement filed in respect thereof; provided, however, that in the event Institutional Shareholder Services Inc. (“ISS”) and Glass Lewis & Co., LLC (“Glass Lewis”) make a recommendation that differs from the recommendation of the Board with respect to any proposal submitted to the shareholders at any Shareholder Meeting (other than Director Proposals), the Ancora Parties and the Members of the Ancora Parties are permitted to vote the shares of Common Stock Beneficially Owned by them at such Shareholder Meeting in accordance with the ISS or G▇▇▇▇ ▇▇▇▇▇ recommendation; provided, further, that the Ancora 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 (A) to any publicly announced proposal relating to any transaction pursuant to which any person is or becomes a Beneficial Owner, directly or indirectly, of securities of the Corporation representing more than 50% of the Corporation’s then outstanding equity interest and voting power, a merger, stock for stock transaction, acquisition, disposition of all or substantially all of the assets of the Corporation and its subsidiaries or other business combination involving the Corporation or (B) any financing, recapitalization, restructuring, share issuance or similar extraordinary transaction, in each case, that requires a vote of the Corporation’s shareholders.
Appears in 1 contract
Standstill and Voting. a. The Ancora Parties each agree 2.1 Except as expressly contemplated by the Subscription Agreement or the Convertible Note (as defined in the Subscription Agreement), the Investor agrees that during the period beginning on the date of this Agreement until the earlier of (a) the later of (i) the two (2) year anniversary of this Agreement, and (ii) the calendar day immediately following the date Investor ceases to Beneficially Own at least five percent (5%) of the outstanding Common Stock of the Company (the “Standstill Period Period”); or (as defined belowb) a transaction whereby (i) 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, (ii) 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 shareholders retain less than 50% of the equity interests and voting power of the surviving entity’s then outstanding equity securities or (ii) the Company sells all or substantially all of the Company’s assets to a third party (a “Change of Control”), neither the Ancora Parties and the Ancora Affiliates Investor nor any of its representatives acting on its behalf will not (and they will not assist or knowingly encourage others to), directly or indirectly, in any manner, without prior written approval of the Board:
i. 2.1.1 take any actionsaction, including by acquiring, or make any announcement or proposal with respect to, seeking to acquire or agreeing to acquire (directly or indirectly), whether by market purchases, private purchases, tender or exchange offer, through the acquisition of control of another person, by joining a “group” (within the meaning of Section 13(d)(3) of the Exchange Act), through swap or hedging transactions or otherwise, ) any shares of Common Stock (or Beneficial Ownership thereof) or any securities convertible or exchangeable into or exercisable for any shares of Common Stock (or Beneficial Ownership thereof) (including any derivative securities or any other rights decoupled from the underlying securities of the CorporationCompany) such that the Ancora Parties Investor would Beneficially Own in excess of 7.540% of the shares of Company’s outstanding Common Stock outstanding at such time;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 Corporation or any rights decoupled from the underlying securities held by the Ancora Parties to any person or entity not 2.1.2 (A) a party to this Agreementknowingly encourage, (B) a member of the Board, (C) an officer of the Corporation or (D) an Affiliate of the Ancora Parties (any person or entity not set forth in the foregoing clauses (A)-(D) shall be referred to as a “Third Party”) that would result in such Third Party, together with its Affiliates, owning, controlling or otherwise having any beneficial or other ownership interest representing in the aggregate in excess of 2.0% of the shares of Common Stock outstanding at such time;
(A) advise or knowingly encourage or influence any other Person or knowingly assist any third party in so encouraging, assisting or influencing any other Person with respect to the giving or withholding of any proxy, consent or other authority to vote or in conducting any type of referendum (other than such encouragement, advice or influence that is consistent with the Board’s recommendation in connection with such matter) or (B) advise, influence or encourage any Person with respect to, or effect or seek to effect, whether alone or in concert with others, the election, nomination or removal of a directordirector other than as permitted by Section 1;
iv. 2.1.3 solicit proxies or written consents of shareholders or conduct any other type of referendum (binding or non-binding) (including any “withhold,” “vote no” or similar campaign) with respect to the shares of Common Stock, or from the holders of the shares of Common Stock, or become a “participant” (as such term is defined in Instruction 3 to Item 4 of Schedule 14A promulgated under the Exchange Act) in or knowingly encourage or assist any third party in any “solicitation” of any proxy, consent or other authority (as such terms are defined under the Exchange Act) to vote any shares of Common Stock (other than any encouragement, advice or influence that is consistent with the Board’s recommendation in connection with such matter);
2.1.4 (A) form, form or join or in any other way participate in a “group” with respect to any securities shares of Common Stock (other than a “group” solely consisting of the Ancora Parties Investor or Ancora controlled Investor Affiliates); provided, that nothing herein shall limit the ability of an Investor Affiliate to join such group following the execution of this Agreement, so long as any such Investor Affiliate agrees to be bound by the terms and conditions of this Agreement, (B) grant any proxy, consent or other authority to vote with respect to any matters to be voted on by the CorporationCompany’s shareholders at any annual or special shareholder meeting or pursuant to an action by written consent of the shareholders (each a “Shareholder Meeting”), other than to the named proxies included in the CorporationCompany’s proxy card for any Shareholder Meeting annual meeting or special meeting of shareholders or in accordance with Section 2(b2.2) or (C) agree to deposit or deposit any securities shares of Common Stock or any securities convertible or exchangeable into or exercisable for any such securities shares of Common Stock in any voting trust, agreement trust or similar arrangement (other than (I) to the named proxies included in the CorporationCompany’s proxy card for any Shareholder Shareholders Meeting, (II) customary brokerage accounts, margin accounts, prime brokerage accounts and the like or and (III) any agreement solely among the Ancora Parties Investor or Ancora controlled Investor Affiliates);
vi. 2.1.5 without the approval of the Board, separately or in conjunction with any third party in which it is or proposes to be either a principal, partner or financing source or is acting or proposes to act as broker or agent for compensation, propose (publicly or privately, with or without conditions), indicate an interest in ) or effect any tender offer or exchange offer, merger, acquisition, division, reorganization, restructuring, recapitalization or other business combination involving the Corporation Company or any a material amount of its subsidiaries or the assets or businesses of the Corporation or any of its subsidiaries Company or actively encourage or encourage, initiate or support any other third party in any such activity; provided, however, that the Ancora Parties Investor and Ancora Investor Affiliates shall be permitted to (Ai) sell or tender their securities subject to applicable rules shares of the SEC and the New York Stock ExchangeCommon Stock, and otherwise receive consideration, pursuant to any such transaction and (Bii) vote on any such transaction in accordance with Section 2(b)2.2;
(A) nominate, recommend for nomination, or give notice of an intent to nominate or recommend for nomination a person for election at any Shareholder Meeting at which the Corporation’s directors are to be elected, (B) 2.1.6 present at any Shareholder Meeting annual meeting or any special meeting of the Company’s shareholders any proposal for consideration for action by the shareholders, or (C) call or seek to call, or request the call of, alone or in concert with others, or support another shareholder’s call for, any meeting of shareholders, whether or not such a meeting is permitted by the Corporation’s organizational documents;
viii. 2.1.7 other than through non-public communications with the Company that would not reasonably be expected to trigger public disclosure obligations for any party, 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 Corporation, including any plans or proposals to change the number or term of directors or the removal of any directors, or to fill any vacancies on the Board; (B) any material change in the capitalization, stock repurchase programs and practices or dividend policy of the Corporation; (C) any other material change in the Corporation’s management, business or corporate structure; (D) seeking to have the Corporation waive or make amendments or modifications to the Corporation’s charter or bylaws or take other actions that may impede or facilitate the acquisition of control of the Corporation by any Person; (E) causing a class of securities of the 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 Corporation to become eligible for termination of registration pursuant to Section 12(g)(4) of the Exchange Act, in each case with respect to the foregoing clauses (A) through (F)Company;
ix. make any request for shareholder list materials or other books and records of the Corporation under Chapter 52 Section 2 (IC 23-1-52-2) of the IBCL, or otherwise; provided that if any New Independent Director (or any Replacement Director, as applicable) makes such a request solely in such New Independent Director’s (or any Replacement Director’s, as applicable) capacity as a director in a manner consistent with his or her fiduciary duties to the Corporation, such material and other books and records may not be shared with any other Ancora Party, Member of the Ancora Parties or any Ancora Affiliate, notwithstanding any other provision of this Agreement;
x. 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 Parties; or
xi. request that the Corporation, directly or indirectly, amend or waive any provision of this Section 2 (including this clause (a)(xi)), other than through non-public communications with the Corporation that would not reasonably be expected to trigger public disclosure obligations for any Party. The foregoing provisions of this Section 2(a) shall not be deemed to prevent any Member of the Ancora Parties from (i) communicating privately with the Board or any of the Corporation’s executive officers regarding any matter, so long as such communications are not intended to, and would not reasonably be expected to, require the Corporation or any Member of the Ancora Parties to make public disclosure with respect thereto; (ii) communicating privately with shareholders of the Corporation and others in a manner that does not otherwise violate this Section 2(a), Section 3 hereof or any other provision of this Agreement; (iii) only during the period thirty (30) days prior to the termination of the Standstill Period, identifying potential director candidates to serve on the Board, so long as such actions do not create a public disclosure obligation for the Ancora Parties or the Corporation, are not publicly disclosed by the Ancora Parties or its Affiliates and are undertaken on a basis reasonably designed to be confidential; (iv) making or sending private communications to investors in any Member of the Ancora Parties or any of their Affiliates, provided that such statements or communications (1) are based on publicly available information, (2) are not reasonably expected to be publicly disclosed and are understood by all parties to be confidential communications, and (3) pertain to the investor’s investment in the Ancora Parties or any of their Affiliates; or (v) taking any action to the extent necessary to comply with any law, rule or regulation or any action required by any governmental or regulatory authority or stock exchange that has, or may have, jurisdiction over any Member of the Ancora Parties. Furthermore, for the avoidance of doubt, nothing in this Agreement shall be deemed to restrict in any way any New Independent Director (or any Replacement Director, as applicable) in the exercise of his or her fiduciary duties under applicable law as a director of the Corporation.
b. In respect of any vote or consent of the Corporation’s shareholders during the Standstill Period (whether at an annual or special shareholder meeting or pursuant to an action by written consent of the shareholders), the Ancora Parties and the Members of the Ancora Parties shall appear or act in person or by proxy and vote all shares of Common Stock Beneficially Owned by them in accordance with the recommendation of the Board with respect to (i) the election, removal and/or replacement of directors (a “Director Proposal”), (ii) the ratification of the appointment of the Corporation’s independent registered public accounting firm and (iii) any other proposal submitted to the Corporation’s shareholders at a Shareholder Meeting, in each case as such recommendation of the Board is set forth in the applicable definitive proxy statement filed in respect thereof; provided, however, that in the event Institutional Shareholder Services Inc. (“ISS”) and Glass Lewis & Co., LLC (“Glass Lewis”) make a recommendation that differs from the recommendation of the Board with respect to any proposal submitted to the shareholders at any Shareholder Meeting (other than Director Proposals), the Ancora Parties and the Members of the Ancora Parties are permitted to vote the shares of Common Stock Beneficially Owned by them at such Shareholder Meeting in accordance with the ISS or G▇▇▇▇ ▇▇▇▇▇ recommendation; provided, further, that the Ancora 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 (A) to any publicly announced proposal relating to any transaction pursuant to which any person is or becomes a Beneficial Owner, directly or indirectly, of securities of the Corporation representing more than 50% of the Corporation’s then outstanding equity interest and voting power, a merger, stock for stock transaction, acquisition, disposition of all or substantially all of the assets of the Corporation and its subsidiaries or other business combination involving the Corporation or (B) any financing, recapitalization, restructuring, share issuance or similar extraordinary transaction, in each case, that requires a vote of the Corporation’s shareholders.
Appears in 1 contract
Standstill and Voting. a. The Ancora Parties each agree 2.1 Except as expressly contemplated by the Subscription Agreement or the Convertible Note (as defined in the Subscription Agreement), the Investor agrees that during the period beginning on the date of this Agreement until the earlier of (a) the later of (i) the two (2) year anniversary of this Agreement, and (ii) the calendar day immediately following the date Investor ceases to Beneficially Own at least five percent (5%) of the outstanding Common Stock of the Company (the “Standstill Period Period”); or (as defined belowb) a transaction whereby (i) 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, (ii) 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 shareholders retain less than 50% of the equity interests and voting power of the surviving entity’s then outstanding equity securities or (ii) the Company sells all or substantially all of the Company’s assets to a third party (a “Change of Control”), neither the Ancora Parties and the Ancora Affiliates Investor nor any of its representatives acting on its behalf will not (and they will not assist or knowingly encourage others to), directly or indirectly, in any manner, without prior written approval of the Board:
i. 2.1.1 take any actionsaction, including by acquiring, or make any announcement or proposal with respect to, seeking to acquire or agreeing to acquire (directly or indirectly), whether by market purchases, private purchases, tender or exchange offer, through the acquisition of control of another person, by joining a “group” (within the meaning of Section 13(d)(3) of the Exchange Act), through swap or hedging transactions or otherwise, ) any shares of Common Stock (or Beneficial Ownership thereof) or any securities convertible or exchangeable into or exercisable for any shares of Common Stock (or Beneficial Ownership thereof) (including any derivative securities or any other rights decoupled from the underlying securities of the CorporationCompany) such that the Ancora Parties Investor would Beneficially Own in excess of 7.540% of the shares of Company’s outstanding Common Stock outstanding 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 Corporation or any rights decoupled from the underlying securities held by the Ancora Parties to any person or entity not (A) a party to this Agreement, (B) a member of the Board, (C) an officer of the Corporation or (D) an Affiliate of the Ancora Parties (any person or entity not set forth in the foregoing clauses (A)-(D) shall be referred to as a “Third Party”) that would result in such Third Party, together with its Affiliates, owning, controlling or otherwise having any beneficial or other ownership interest representing in the aggregate in excess of 2.0% of the shares of Common Stock outstanding at such timeStock;
(A) knowingly encourage, 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 directordirector other than as permitted by Section 1;
iv. 2.1.3 solicit proxies or written consents of shareholders or conduct any other type of referendum (binding or non-binding) (including any “withhold,” “vote no” or similar campaign) with respect to the shares of Common Stock, or from the holders of the shares of Common Stock, or become a “participant” (as such term is defined in Instruction 3 to Item 4 of Schedule 14A promulgated under the Exchange Act) in or knowingly encourage or assist any third party in any “solicitation” of any proxy, consent or other authority (as such terms are defined under the Exchange Act) to vote any shares of Common Stock (other than any encouragement, advice or influence that is consistent with the Board’s recommendation in connection with such matter);
(A) form, form or join or in any other way participate in a “group” with respect to any securities shares of Common Stock (other than a “group” solely consisting of the Ancora Parties Investor or Ancora controlled Investor Affiliates); provided, that nothing herein shall limit the ability of an Investor Affiliate to join such group following the execution of this Agreement, so long as any such Investor Affiliate agrees to be bound by the terms and conditions of this Agreement, (B) grant any proxy, consent or other authority to vote with respect to any matters to be voted on by the CorporationCompany’s shareholders at any annual or special shareholder meeting or pursuant to an action by written consent of the shareholders (each a “Shareholder Meeting”), other than to the named proxies included in the CorporationCompany’s proxy card for any Shareholder Meeting annual meeting or special meeting of shareholders or in accordance with Section 2(b2.2) or (C) agree to deposit or deposit any securities shares of Common Stock or any securities convertible or exchangeable into or exercisable for any such securities shares of Common Stock in any voting trust, agreement trust or similar arrangement (other than (I) to the named proxies included in the CorporationCompany’s proxy card for any Shareholder Shareholders Meeting, (II) customary brokerage accounts, margin accounts, prime brokerage accounts and the like or and (III) any agreement solely among the Ancora Parties Investor or Ancora controlled Investor Affiliates);
vi. 2.1.5 without the approval of the Board, separately or in conjunction with any third party in which it is or proposes to be either a principal, partner or financing source or is acting or proposes to act as broker or agent for compensation, propose (publicly or privately, with or without conditions), indicate an interest in ) or effect any tender offer or exchange offer, merger, acquisition, division, reorganization, restructuring, recapitalization or other business combination involving the Corporation Company or any a material amount of its subsidiaries or the assets or businesses of the Corporation or any of its subsidiaries Company or actively encourage or encourage, initiate or support any other third party in any such activity; provided, however, that the Ancora Parties Investor and Ancora Investor Affiliates shall be permitted to (Ai) sell or tender their securities subject to applicable rules shares of the SEC and the New York Stock ExchangeCommon Stock, and otherwise receive consideration, pursuant to any such transaction and (Bii) vote on any such transaction in accordance with Section 2(b)2.2;
(A) nominate, recommend for nomination, or give notice of an intent to nominate or recommend for nomination a person for election at any Shareholder Meeting at which the Corporation’s directors are to be elected, (B) 2.1.6 present at any Shareholder Meeting annual meeting or any special meeting of the Company’s shareholders any proposal for consideration for action by the shareholders, or (C) call or seek to call, or request the call of, alone or in concert with others, or support another shareholder’s call for, any meeting of shareholders, whether or not such a meeting is permitted by the Corporation’s organizational documents;
viii. 2.1.7 other than through non-public communications with the Company that would not reasonably be expected to trigger public disclosure obligations for any party, 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 Corporation, including any plans or proposals to change the number or term of directors or the removal of any directors, or to fill any vacancies on the Board; (B) any material change in the capitalization, stock repurchase programs and practices or dividend policy of the CorporationCompany; (CB) any other material change in the CorporationCompany’s management, business or corporate structure; (DC) seeking to have the Corporation Company waive or make amendments or modifications to the CorporationCompany’s charter Amended and Restated Charter (except as set forth in Section 1) or bylaws the Amended and Restated Bylaws of the Company, or take other actions that may impede or facilitate the acquisition of control of the Corporation Company by any Personperson; (ED) causing a class of securities of the Corporation Company to be delisted from, or to cease to be authorized to be quoted on, any securities exchange; or (FE) causing a class of securities of the Corporation 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);
ix. make any request for shareholder list materials or other books and records of the Corporation under Chapter 52 Section 2 (IC 23-1-52-2) of the IBCL, or otherwise; provided that if any New Independent Director (or any Replacement Director, as applicable) makes such a request solely in such New Independent Director’s (or any Replacement Director’s, as applicable) capacity as a director in a manner consistent with his or her fiduciary duties to the Corporation, such material and other books and records may not be shared with any other Ancora Party, Member of the Ancora Parties or any Ancora Affiliate, notwithstanding any other provision of this Agreement;
x. 2.1.8 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 PartiesInvestor; or
xi. 2.1.9 request that the CorporationCompany, directly or indirectly, amend or waive any provision of this Section 2 (including this clause (a)(xi)Section 2.1.9), other than through non-public communications with the Corporation Company that would not reasonably be expected to trigger public disclosure obligations for any Partyparty. The foregoing provisions of this Section 2(a) 2.1 shall not be deemed to prevent any Member of the Ancora Parties Investor from (i) communicating privately with the Board or any of the CorporationCompany’s executive senior officers regarding any matter, so long as such communications are not intended to, and would not reasonably be expected to, require the Corporation Company or any Member of the Ancora Parties Investor to make public disclosure with respect thereto; , (ii) communicating privately with shareholders of the Corporation Company and others in a manner that does not otherwise violate this Section 2(a)2.1, Section 3 hereof or any other provision of this Agreement; (iii) only during the period thirty (30) days prior to the termination of the Standstill Period, identifying potential director candidates to serve on the Board, so long as such actions do not create a public disclosure obligation for the Ancora Parties or the Corporation, are not publicly disclosed by the Ancora Parties or its Affiliates and are undertaken on a basis reasonably designed to be confidential; (iv) making or sending private communications to investors in any Member of the Ancora Parties or any of their Affiliates, provided that such statements or communications (1) are based on publicly available information, (2) are not reasonably expected to be publicly disclosed and are understood by all parties to be confidential communications, and (3) pertain to the investor’s investment in the Ancora Parties or any of their Affiliates; or (v) taking any action to the extent necessary to comply with any law, rule or regulation or any action required by any governmental or regulatory authority or stock exchange that has, or may have, jurisdiction over the Investor, or (iv) taking any Member of action to enforce the Ancora PartiesInvestor’s rights hereunder or remedies with respect thereto. Furthermore, for the avoidance of doubt, nothing in this Agreement shall be deemed to restrict in any way any New Independent Director (the Appointee or any a Replacement Director, as applicable) in the exercise of his or her fiduciary duties under applicable law as a director of the CorporationCompany.
b. In respect of 2.2 At any vote or consent meeting of the CorporationCompany’s shareholders during the Standstill Period (as defined below) (whether at an annual or special shareholder meeting and whether by vote or pursuant to an action by written consent of the shareholdersconsent) (each a “Shareholder Meeting”), the Ancora Parties and the Members of the Ancora Parties Investor shall appear or act in person or by proxy and vote all shares of Common Stock Beneficially Owned by them the Investor in accordance with the recommendation of the Board with respect to (i) the election, removal and/or replacement of directors (a “Director Proposal”), (ii) the ratification of the appointment of the CorporationCompany’s independent registered public accounting firm and (iii) any other proposal submitted to the CorporationCompany’s shareholders at a Shareholder Meeting, in each case as such recommendation of the Board is set forth in the applicable definitive proxy statement filed in respect thereof; provided, however, that in the event either Institutional Shareholder Services Inc. (“ISS”) and Glass Lewis & Co., LLC (“Glass Lewis”) make a recommendation that differs from the recommendation of the Board with respect to any proposal submitted to the shareholders at any Shareholder Meeting (other than Director Proposals), the Ancora Parties and the Members of the Ancora Parties are Investor is permitted to vote the shares of Common Stock Beneficially Owned by them the Investor at such Shareholder Meeting in accordance with the ISS or G▇▇▇▇ ▇▇▇▇▇ and Glass Lewis recommendation; provided, further, that the Ancora Parties and the Members of the Ancora Parties Investor shall be entitled to vote the shares of Common Stock Beneficially Owned by them the Investor in their its sole discretion with respect to any proposal relating to: (A) to any publicly announced proposal relating to any transaction pursuant to which any person is or becomes a Beneficial Ownerthat would constitute Change of Control, directly or indirectly, of securities of the Corporation representing more than 50% of the Corporation’s then outstanding equity interest and voting power, a merger, stock for stock transaction, acquisition, disposition of all or substantially all of the assets of the Corporation and its subsidiaries or other business combination involving the Corporation or (B) the adoption, amendment or modification of a stock incentive plan or management compensation plan or (C) the issuance of any financingequity interests or securities requiring shareholder approval, recapitalizationpursuant to Nasdaq listing requirements, restructuring, share issuance or similar extraordinary transactionotherwise.
2.3 During the Standstill Period, in each case, the event that requires a vote the size of the Corporation’s shareholdersBoard is increased, the Investor shall have the right to maintain pro rata representation on the Board. Specifically, if the Board size is increased, the Investor shall be entitled to appoint a number of directors equal to forty percent (40%) of the total number of directors then in office, rounded up to the nearest whole number.
Appears in 1 contract
Standstill and Voting. a. The Ancora Parties each agree Each member of the Investor Group agrees that during the Standstill Period (as defined below)Period, the Ancora Parties Investor Group and the Ancora Investor Group Affiliates will not (and they will not assist or encourage others to), directly or indirectly, in any manner, without prior written approval of the Board:
i. take any actions, including acquiring, seeking to acquire or agreeing to acquire (directly or indirectly), whether by market purchases, private purchases, tender or exchange offer, through the acquisition of control of another person, by joining a “group” (within the meaning of Section 13(d)(3) of the Exchange Act), through swap or hedging transactions or otherwise, ) any shares of Common Stock (or Beneficial Ownership thereof) or any securities convertible or exchangeable into or exercisable for any shares of Common Stock (or Beneficial Ownership thereof) (including any derivative securities or any other rights decoupled from the underlying securities of the CorporationCompany) such that the Ancora Parties Investor Group would Beneficially Own in the aggregate in excess of 7.54.99% of the then‑outstanding shares of Common Stock outstanding at such time;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 Corporation Company or any rights decoupled from the underlying securities held by the Ancora Parties 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 Corporation Company or (D) an Affiliate of the Ancora Parties Investor Group (any person or entity not set forth in the foregoing 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 any, beneficial or other ownership interest representing in the aggregate in excess of 2.05.0% of the shares of Common Stock outstanding at such time;
(A) advise or knowingly encourage or influence any other Person or knowingly assist any third party in so encouraging, assisting or influencing any other Person with respect to the giving or withholding of any proxy, consent or other authority to vote or in conducting any type of referendum (other than such encouragement, advice or influence that is consistent with the Board’s recommendation in connection with such matter) or (B) advise, influence or encourage any Person with respect to, or effect or seek to effect, whether alone or in concert with others, the election, nomination or removal of a directordirector other than as permitted by Section 1;
iv. solicit proxies or written consents of shareholders stockholders or conduct any other type of referendum (binding or non-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);
(A) form, join or in any other way participate in a “group” with respect to any securities shares of Common Stock (other than a “group” solely consisting of the Ancora Parties Investor Group or Ancora controlled Investor Group Affiliates), (B) grant any proxy, consent or other authority to vote with respect to any matters to be voted on by the CorporationCompany’s shareholders at any annual or special shareholder meeting or pursuant to an action by written consent of the shareholders stockholders (each a “Shareholder Meeting”), other than to the named proxies included in the CorporationCompany’s proxy card for any Shareholder Stockholder Meeting (as defined below) or in accordance with Section 2(b)) or (C) agree to deposit or deposit any securities shares of Common Stock or any securities convertible or exchangeable into or exercisable for any such securities shares of Common Stock in any voting trust, agreement or similar arrangement (other than (I) to the named proxies included in the CorporationCompany’s proxy card for any Shareholder Stockholder Meeting, (II) customary brokerage accounts, margin accounts, prime brokerage accounts and the like or (III) any agreement solely among the Ancora Parties Investor Group or Ancora controlled Investor Group Affiliates);
; vi. separately or in conjunction with any third party in which it is or proposes to be either a principal, partner or financing source or is acting or proposes to act as broker or agent for compensation, propose (publicly or privately, with or without conditions), indicate an interest in or effect any tender offer or exchange offer, merger, acquisition, division, reorganization, restructuring, recapitalization or other business combination involving the Corporation Company or any of its subsidiaries or the assets or businesses of the Corporation 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 Parties Investor Group and Ancora Investor Group Affiliates shall be permitted to (A) sell or tender their securities subject to applicable rules shares of the SEC and the New York Stock ExchangeCommon Stock, and otherwise receive consideration, pursuant to any such transaction and (B) vote on any such transaction in accordance with Section 2(b);
(A) nominate, recommend for nomination, nomination or give notice of an intent to nominate or recommend for nomination a person for election at any Shareholder Stockholder Meeting at which the CorporationCompany’s directors are to be elected, elected or (BB)(I) present at any Shareholder Stockholder Meeting any proposal (pursuant to Rule 14a-8 or otherwise) for consideration for action by the shareholders, stockholders or (CII) call or seek to call, or request the call of, alone or in concert with others, or support another shareholderstockholder’s call for, any meeting of shareholdersstockholders, whether or not such a meeting is permitted by the CorporationCompany’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 CorporationCompany, 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 CorporationCompany; (C) any other material change in the CorporationCompany’s management, business or corporate structure; (D) seeking to have the Corporation Company waive or make amendments or modifications to the CorporationCompany’s charter charter, the Bylaws or bylaws any of the Company Policies (each as may be amended from time to time), or take other actions that may impede or facilitate the acquisition of control of the Corporation Company by any Personperson; (E) causing a class of securities of the Corporation 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 Corporation Company to become eligible for termination of registration pursuant to Section 12(g)(4) of the Exchange Act, in each case with respect to the foregoing clauses (A) through (F), except as set forth in Section 1;
ix. make any request for shareholder stockholder list materials or other books and records of the Corporation Company under Chapter 52 Section 2 (IC 23-1-52-2) 220 of the IBCL, Delaware General Corporation Law or otherwise; provided that if any New Independent Director (or any Replacement New Director, as applicable) makes such a request solely in such New Independent Director’s (or any Replacement Director’s, as applicable) capacity as a director of the Company in a manner consistent with his or her fiduciary duties to the CorporationCompany, such material and other books and records may not be shared with any other Ancora Party, Member member of the Ancora Parties Investor Group or any Ancora Investor Group Affiliate, notwithstanding any other provision of this Agreement; x. institute, solicit, join (as a party) or knowingly assist any litigation, arbitration or other proceeding against the Company or any of its current or former directors or officers (including derivative actions), other than (A) litigation by the Investor Group to enforce the provisions of this Agreement, (B) counterclaims with respect to any proceeding initiated by, or on behalf of, the Company or its Affiliates against the Investor Group or any New Director (or any Replacement New Director, as applicable) and (C) the exercise of statutory appraisal rights; provided that the foregoing shall not prevent the Investor Group from responding to or complying with a validly issued legal process (and the Company agrees that this Section 2(a)(x) shall apply mutatis mutandis to the Company and its directors, officers, employees and agents (in each case, acting in such capacity) and Affiliates with respect to the Investor Group);
x. 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 Parties; or
xi. request that the Corporation, directly or indirectly, amend or waive any provision of this Section 2 Investor Group (including this clause (a)(xi)), other than through non-public communications with the Corporation that would not reasonably be expected to trigger public disclosure obligations for any Party. The foregoing provisions of this Section 2(a) shall not be deemed to prevent any Member of the Ancora Parties from (i) communicating privately with the Board or any of the Corporation’s executive officers regarding any matter, so long except as such communications are not intended to, and would not reasonably be expected to, require the Corporation or any Member of the Ancora Parties to make public disclosure with respect thereto; (ii) communicating privately with shareholders of the Corporation and others in a manner that does not otherwise violate this Section 2(a), Section 3 hereof or any other provision of this Agreement; (iii) only during the period thirty (30) days prior to the termination of the Standstill Period, identifying potential director candidates to serve on the Board, so long as such actions do not create a public disclosure obligation for the Ancora Parties or the Corporation, are not publicly disclosed by the Ancora Parties or its Affiliates and are undertaken on a basis reasonably designed to be confidential; (iv) making or sending private communications to investors in any Member of the Ancora Parties or any of their Affiliates, provided that such statements or communications (1) are based on publicly available information, (2) are not reasonably expected to be publicly disclosed and are understood by all parties to be confidential communications, and (3) pertain to the investor’s investment in the Ancora Parties or any of their Affiliates; or (v) taking any action to the extent necessary to comply with any law, rule or regulation or any action required by any governmental or regulatory authority or stock exchange that has, or may have, jurisdiction over any Member of the Ancora Parties. Furthermore, for the avoidance of doubt, nothing in this Agreement shall be deemed to restrict in any way any New Independent Director (or any Replacement Director, as applicable) in the exercise of his or her fiduciary duties under applicable law as a director of the Corporation.
b. In respect of any vote or consent of the Corporation’s shareholders during the Standstill Period (whether at an annual or special shareholder meeting or pursuant to an action by written consent of the shareholders), the Ancora Parties and the Members of the Ancora Parties shall appear or act in person or by proxy and vote all shares of Common Stock Beneficially Owned by them in accordance with the recommendation of the Board with respect to (i) the election, removal and/or replacement of directors (a “Director Proposal”), (ii) the ratification of the appointment of the Corporation’s independent registered public accounting firm and (iii) any other proposal submitted to the Corporation’s shareholders at a Shareholder Meeting, in each case as such recommendation of the Board is set forth in the applicable definitive proxy statement filed in respect thereofSection 1); provided, however, that in the event Institutional Shareholder Services Inc. (“ISS”) and Glass Lewis & Co., LLC (“Glass Lewis”) make a recommendation that differs from the recommendation of the Board with respect to any proposal submitted to the shareholders at any Shareholder Meeting (other than Director Proposals), the Ancora Parties and the Members of the Ancora Parties are permitted to vote the shares of Common Stock Beneficially Owned by them at such Shareholder Meeting in accordance with the ISS or G▇▇▇▇ ▇▇▇▇▇ recommendation; provided, further, that the Ancora 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 (A) to any publicly announced proposal relating to any transaction pursuant to which any person is or becomes a Beneficial Owner, directly or indirectly, of securities of the Corporation representing more than 50% of the Corporation’s then outstanding equity interest and voting power, a merger, stock for stock transaction, acquisition, disposition of all or substantially all of the assets of the Corporation and its subsidiaries or other business combination involving the Corporation or (B) any financing, recapitalization, restructuring, share issuance or similar extraordinary transaction, in each case, that requires a vote of the Corporation’s shareholders.or
Appears in 1 contract
Standstill and Voting. a. The Ancora Parties each agree ▇▇▇▇▇▇ agrees that during the Standstill Period (as defined below), the Ancora Parties Dendur and the Ancora its Affiliates will not (and they will not assist or encourage others to), directly or indirectly, in any manner, without prior written approval of the Board:
i. take any actionsacquire, including acquiring, seeking seek to acquire or agreeing agree 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 short sale, forward contract or any purchase, sale or grant of any option, warrant, convertible security, stock appreciation right or other similar right (including swap or hedging transactions or otherwise), any shares of Common Stock (or Beneficial Ownership thereof) or any securities convertible or exchangeable into or exercisable for any shares of Common Stock (or Beneficial Ownership thereof) (including any derivative securities or any other rights decoupled from the underlying securities of the Corporation) such that the Ancora Parties Dendur would Beneficially Own in excess of 7.56.0% of the shares of Common Stock outstanding at such time;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 Corporation or any rights decoupled from the underlying securities held by the Ancora Parties Dendur to any person Person (as defined below) or entity not (A) a party to this Agreement, (B) a member of the Board, (C) an officer of the Corporation or (D) an Affiliate of the Ancora Parties Dendur (any person Person or entity not set forth in the foregoing clauses (A)-(D) shall be referred to as a “Third Party”) that would result in such Third Party, together with its such Third-Parties’ Affiliates, owning, controlling or otherwise having any beneficial or other ownership interest representing in the aggregate in excess of 2.03.0% of the shares of Common Stock outstanding at such time;
(A) advise or knowingly encourage or influence any other Person or knowingly assist any third party 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;
iv. solicit proxies or written consents of shareholders stockholders or conduct any other type of referendum (binding or non-binding) (including any “withhold,” “vote no” or similar campaign) with respect to the shares of Common Stock, or from the holders of the shares of Common Stock, or become a “participant” (as such term is defined in Instruction 3 to Item 4 of Schedule 14A promulgated under the Exchange Act) in or knowingly encourage or assist any third party Third Party in any “solicitation” of any proxy, consent or other authority (as such terms are defined under the Exchange Act) to vote any shares of Common Stock (other than any encouragement, advice or influence that is consistent with the Board’s recommendation in connection with such matter);
(A) form, join or in any other way participate in a “group” with respect to any securities (other than a “group” solely consisting of the Ancora Parties Dendur or Ancora Dendur controlled Affiliates), (B) grant any proxy, consent or other authority to vote with respect to any matters to be voted on by the Corporation’s shareholders stockholders at any annual or special shareholder stockholder meeting or pursuant to an action by written consent of the shareholders stockholders (each each, a “Shareholder Stockholder Meeting”), other than to the named proxies included in the Corporation’s proxy card for any Shareholder Stockholder Meeting or in accordance with Section 2(b) or (C) agree to deposit or deposit any securities or any securities convertible or exchangeable into or exercisable for any such securities in any voting trust, agreement or similar arrangement (other than (I) to the named proxies included in the Corporation’s proxy card for any Shareholder Stockholder Meeting, (II) customary brokerage accounts, margin accounts, prime brokerage accounts and the like or (III) any agreement solely among the Ancora Parties Dendur or Ancora Dendur’s controlled Affiliates);
vi. separately or in conjunction with any third party 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), directly or indirectly indicate an interest in in, facilitate, participate or effect any tender offer or offer, exchange offer, merger, acquisition, division, reorganization, restructuring, recapitalization recapitalization, spin-off or other business combination involving the Corporation or any of its subsidiaries or the assets or businesses of the Corporation or any of its subsidiaries subsidiaries, or material acquisition of any assets or business of the Corporation, or actively encourage or encourage, facilitate, initiate or support any other third party Third Party in any such foregoing activity; provided, however, that the Ancora Parties Dendur and Ancora its Affiliates shall be permitted to (A) sell or tender their securities subject to applicable rules of the SEC and the New York Stock ExchangeNYSE, and otherwise receive consideration, pursuant to any such transaction and (B) vote on any such transaction in accordance with Section 2(b);
(A) nominate, recommend for nomination, or give notice of an intent to nominate or recommend for nomination a person for election at any Shareholder Stockholder Meeting at which the Corporation’s directors are to be elected, (B) submit or present at any Shareholder Meeting any proposal for consideration for action by the shareholdersat, or bring any other business before, a Stockholder Meeting or (C) call or seek to call, or request the call of, alone or in concert with others, or support another shareholderstockholder’s call for, any meeting of shareholdersstockholders, whether or not such a meeting is permitted by the Corporation’s organizational documents;
viii. take any action in support of or make any public proposal or request that constitutes: (A) controlling, changing or influencing the Board, management or policies of the Corporation, including any plans or proposals to change the number number, class 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 Corporation; (C) any other material change in the Corporation’s management, business or corporate structure; (D) seeking to have the Corporation waive or make amendments or modifications to the Corporation’s charter certificate of incorporation or bylaws or take other actions that may impede have the effect of impeding or facilitate facilitating the acquisition of control of the Corporation by any Person; (E) causing a class of securities of the 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 Corporation to become eligible for termination of registration pursuant to Section 12(g)(4) of the Exchange Act, in each case with respect to the foregoing clauses (A) through (F);
ix. make any request for shareholder stockholder list materials or other books and records of the Corporation under Chapter 52 pursuant to Section 2 (IC 23-1-52-2) 220 of the IBCLDelaware General Corporation Law, or otherwise; provided that if any either of the New Independent Director Directors (or any Replacement Director, as applicable) makes make such a request solely in such New Independent Director’s (or any Replacement Director’s, as applicable) capacity as a director in a manner consistent with his or her fiduciary duties to the Corporation, such material and other books and records may not be shared with any other Ancora Party, Member of the Ancora Parties Dendur or any Ancora Affiliateits Affiliates, notwithstanding any other provision of this Agreement;
x. institute, solicit, join (as a party) or knowingly assist any litigation, arbitration or other proceeding against the Corporation or any of its subsidiaries or any of its current or former directors or officers (including derivative actions); provided that the foregoing shall not prevent Dendur from (A) bringing litigation by ▇▇▇▇▇▇ to enforce the provisions of this Agreement, (B) making counterclaims with respect to any proceeding initiated by, or on behalf of, the Corporation or its Affiliates against Dendur or the New Directors (or any Replacement Director, as applicable), (C) exercising statutory appraisal rights or (D) receiving damages or settlement proceeds like any other stockholder in connection with any class action proceeding brought by a named plaintiff other than Dendur; provided, further, that the foregoing shall not prevent Dendur from responding to or complying with a validly issued legal process (and the Corporation agrees that this Section 2(a)(x) shall apply mutatis mutandis to the Corporation and its directors, officers, employees and agents (in each case, acting in such capacity) and Affiliates with respect to Dendur);
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 Parties▇▇▇▇▇▇; or
xixii. request that the Corporation, directly or indirectly, amend or waive any provision of this Section 2 (including this clause (a)(xia)(xii)), other than through non-public communications with the Corporation that would not reasonably be expected to trigger public disclosure obligations for any Party. The foregoing provisions of this Section 2(a) shall not be deemed to prevent any Member of the Ancora Parties Dendur from (i) communicating privately with the Board or any of the Corporation’s executive officers Chief Executive Officer or Chief Financial Officer regarding any matter, so long as such communications are not intended to, and would not reasonably be expected to, require the Corporation or any Member of the Ancora Parties Dendur to make public disclosure with respect thereto; , (ii) communicating privately with shareholders stockholders of the Corporation and others in a manner that does not otherwise violate this Section 2(a), Section 3 hereof or any other provision of this Agreement; , (iii) only during the period thirty (30) days prior to the termination of the Standstill Period, identifying potential director candidates to serve on the Board, so long as such actions do not create a public disclosure obligation for the Ancora Parties Dendur or the Corporation, are not publicly disclosed by the Ancora Parties Dendur or its Affiliates and are undertaken on a basis reasonably designed to be confidential; , (iv) making or sending private communications to investors in any Member of the Ancora Parties Dendur or any of their its Affiliates, provided that such statements or communications (1) are based on publicly available information, (2) are not reasonably expected to be publicly disclosed and are understood by all parties to be confidential communications, and (3) pertain to the investor’s investment in the Ancora Parties Dendur or any of their its Affiliates; , or (v) taking any action to the extent necessary to comply with any law, rule or regulation or any action required by any governmental or regulatory authority or stock exchange that has, or may have, jurisdiction over any Member of the Ancora PartiesDendur. Furthermore, for the avoidance of doubt, nothing in this Agreement shall be deemed to restrict in any way any the New Independent Director Directors (or any Replacement Director, as applicable) in the exercise of his or her their fiduciary duties under applicable law as a director directors of the Corporation.
b. In respect of any vote or consent of the Corporation’s shareholders stockholders during the Standstill Period (whether at an annual or special shareholder meeting Stockholder Meeting or pursuant to an action by written consent of the shareholdersstockholders), the Ancora Parties and the Members of the Ancora Parties Dendur shall appear or act in person or by proxy and vote or cause to be voted all shares of Common Stock Beneficially Owned by them it in accordance with the recommendation of the Board with respect to (i) the election, removal and/or replacement of directors (a “Director Proposal”), (ii) the ratification of the appointment of the Corporation’s independent registered public accounting firm and (iii) any other proposal proposal, including “say-on-pay,” submitted to the Corporation’s shareholders stockholders at a Shareholder Stockholder Meeting, in each case 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 or Glass Lewis & Co., LLC (“Glass Lewis”) make a recommendation that differs from the recommendation of the Board recommends otherwise with respect to the Corporation’s “say-on-pay” proposal or any other Corporation proposal submitted to the shareholders or stockholder proposal presented at any Shareholder Stockholder Meeting (other than Director ProposalsProposals proposed at the 2025 Annual Meeting), the Ancora Parties and the Members of the Ancora Parties are Dendur shall be permitted to vote in the same proportion as the vote of all other holders of shares of Common Stock Beneficially Owned by them Stock; provided, further, in the event ISS recommends otherwise with respect to any Corporation proposal or stockholder proposal presented at such Shareholder Meeting the 2026 annual Stockholder Meeting, Dendur shall be permitted to vote in accordance with the ISS or G▇▇▇▇ ▇▇▇▇▇ recommendation; provided, further, that the Ancora Parties and the Members of the Ancora Parties Dendur shall be entitled to vote the shares of Common Stock Beneficially Owned by them it in their its sole discretion with respect to (A) to any publicly announced proposal relating to extraordinary transaction, including any transaction involving the Corporation or any of its subsidiaries pursuant to which any person is or becomes a Beneficial Owner, directly or indirectly, of securities of the Corporation representing more than 50% of the Corporation’s then outstanding equity interest and voting power, a merger, stock for stock transaction, acquisition, disposition of all or substantially all of the assets of the Corporation and its subsidiaries or other business combination involving the Corporation or (B) any financing, recapitalization, restructuring, share issuance or similar extraordinary transaction, in each case, that requires a vote of the Corporation’s shareholdersstockholders.
Appears in 1 contract
Sources: Cooperation Agreement (Six Flags Entertainment Corporation/New)
Standstill and Voting. a. The Ancora Parties each agree 2.1 Except as expressly contemplated by the Subscription Agreement or the Convertible Note (as defined in the Subscription Agreement), the Investor agrees that during the period beginning on the date of this Agreement until the earlier of (a) the later of (i) the two (2) year anniversary of this Agreement, and (ii) the calendar day immediately following the date Investor ceases to Beneficially Own at least five percent (5%) of the outstanding Common Stock of the Company (the “Standstill Period Period”); or (as defined belowb) a transaction whereby (i) 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, (ii) 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 shareholders retain less than 50% of the equity interests and voting power of the surviving entity’s then outstanding equity securities or (ii) the Company sells all or substantially all of the Company’s assets to a third party (a “Change of Control”), neither the Ancora Parties and the Ancora Affiliates Investor nor any of its representatives acting on its behalf will not (and they will not assist or knowingly encourage others to), directly or indirectly, in any manner, without prior written approval of the Board:
i. 2.1.1 take any actionsaction, including by acquiring, or make any announcement or proposal with respect to, seeking to acquire or agreeing to acquire (directly or indirectly), whether by market purchases, private purchases, tender or exchange offer, through the acquisition of control of another person, by joining a “group” (within the meaning of Section 13(d)(3) of the Exchange Act), through swap or hedging transactions or otherwise, ) any shares of Common Stock (or Beneficial Ownership thereof) or any securities convertible or exchangeable into or exercisable for any shares of Common Stock (or Beneficial Ownership thereof) (including any derivative securities or any other rights decoupled from the underlying securities of the CorporationCompany) such that the Ancora Parties Investor would Beneficially Own in excess of 7.540% of the shares of Company’s outstanding Common Stock outstanding at such time;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 Corporation or any rights decoupled from the underlying securities held by the Ancora Parties to any person or entity not 2.1.2 (A) a party to this Agreementknowingly encourage, (B) a member of the Board, (C) an officer of the Corporation or (D) an Affiliate of the Ancora Parties (any person or entity not set forth in the foregoing clauses (A)-(D) shall be referred to as a “Third Party”) that would result in such Third Party, together with its Affiliates, owning, controlling or otherwise having any beneficial or other ownership interest representing in the aggregate in excess of 2.0% of the shares of Common Stock outstanding at such time;
(A) advise or knowingly encourage or influence any other Person or knowingly assist any third party in so encouraging, assisting or influencing any other Person with respect to the giving or withholding of any proxy, consent or other authority to vote or in conducting any type of referendum (other than such encouragement, advice or influence that is consistent with the Board’s recommendation in connection with such matter) or (B) advise, influence or encourage any Person with respect to, or effect or seek to effect, whether alone or in concert with others, the election, nomination or removal of a directordirector other than as permitted by Section 1;
iv. 2.1.3 solicit proxies or written consents of shareholders or conduct any other type of referendum (binding or non-binding) (including any “withhold,” “vote no” or similar campaign) with respect to the shares of Common Stock, or from the holders of the shares of Common Stock, or become a “participant” (as such term is defined in Instruction 3 to Item 4 of B-4 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);
2.1.4 (A) form, form or join or in any other way participate in a “group” with respect to any securities shares of Common Stock (other than a “group” solely consisting of the Ancora Parties Investor or Ancora controlled Investor Affiliates); provided, that nothing herein shall limit the ability of an Investor Affiliate to join such group following the execution of this Agreement, so long as any such Investor Affiliate agrees to be bound by the terms and conditions of this Agreement, (B) grant any proxy, consent or other authority to vote with respect to any matters to be voted on by the CorporationCompany’s shareholders at any annual or special shareholder meeting or pursuant to an action by written consent of the shareholders (each a “Shareholder Meeting”), other than to the named proxies included in the CorporationCompany’s proxy card for any Shareholder Meeting annual meeting or special meeting of shareholders or in accordance with Section 2(b2.2) or (C) agree to deposit or deposit any securities shares of Common Stock or any securities convertible or exchangeable into or exercisable for any such securities shares of Common Stock in any voting trust, agreement trust or similar arrangement (other than (I) to the named proxies included in the CorporationCompany’s proxy card for any Shareholder Shareholders Meeting, (II) customary brokerage accounts, margin accounts, prime brokerage accounts and the like or and (III) any agreement solely among the Ancora Parties Investor or Ancora controlled Investor Affiliates);
vi. 2.1.5 without the approval of the Board, separately or in conjunction with any third party in which it is or proposes to be either a principal, partner or financing source or is acting or proposes to act as broker or agent for compensation, propose (publicly or privately, with or without conditions), indicate an interest in ) or effect any tender offer or exchange offer, merger, acquisition, division, reorganization, restructuring, recapitalization or other business combination involving the Corporation Company or any a material amount of its subsidiaries or the assets or businesses of the Corporation or any of its subsidiaries Company or actively encourage or encourage, initiate or support any other third party in any such activity; provided, however, that the Ancora Parties Investor and Ancora Investor Affiliates shall be permitted to (Ai) sell or tender their securities subject to applicable rules shares of the SEC and the New York Stock ExchangeCommon Stock, and otherwise receive consideration, pursuant to any such transaction and (Bii) vote on any such transaction in accordance with Section 2(b)2.2;
(A) nominate, recommend for nomination, or give notice of an intent to nominate or recommend for nomination a person for election at any Shareholder Meeting at which the Corporation’s directors are to be elected, (B) 2.1.6 present at any Shareholder Meeting annual meeting or any special meeting of the Company’s shareholders any proposal for consideration for action by the shareholders, or (C) call or seek to call, or request the call of, alone or in concert with others, or support another shareholder’s call for, any meeting of shareholders, whether or not such a meeting is permitted by the Corporation’s organizational documents;
viii. 2.1.7 other than through non-public communications with the Company that would not reasonably be expected to trigger public disclosure obligations for any party, 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 Corporation, including any plans or proposals to change the number or term of directors or the removal of any directors, or to fill any vacancies on the Board; (B) any material change in the capitalization, stock repurchase programs and practices or dividend policy of the Corporation; (C) any other material change in the Corporation’s management, business or corporate structure; (D) seeking to have the Corporation waive or make amendments or modifications to the Corporation’s charter or bylaws or take other actions that may impede or facilitate the acquisition of control of the Corporation by any Person; (E) causing a class of securities of the 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 Corporation to become eligible for termination of registration pursuant to Section 12(g)(4) of the Exchange Act, in each case with respect to the foregoing clauses (A) through (F)Company;
ix. make any request for shareholder list materials or other books and records of the Corporation under Chapter 52 Section 2 (IC 23-1-52-2) of the IBCL, or otherwise; provided that if any New Independent Director (or any Replacement Director, as applicable) makes such a request solely in such New Independent Director’s (or any Replacement Director’s, as applicable) capacity as a director in a manner consistent with his or her fiduciary duties to the Corporation, such material and other books and records may not be shared with any other Ancora Party, Member of the Ancora Parties or any Ancora Affiliate, notwithstanding any other provision of this Agreement;
x. 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 Parties; or
xi. request that the Corporation, directly or indirectly, amend or waive any provision of this Section 2 (including this clause (a)(xi)), other than through non-public communications with the Corporation that would not reasonably be expected to trigger public disclosure obligations for any Party. The foregoing provisions of this Section 2(a) shall not be deemed to prevent any Member of the Ancora Parties from (i) communicating privately with the Board or any of the Corporation’s executive officers regarding any matter, so long as such communications are not intended to, and would not reasonably be expected to, require the Corporation or any Member of the Ancora Parties to make public disclosure with respect thereto; (ii) communicating privately with shareholders of the Corporation and others in a manner that does not otherwise violate this Section 2(a), Section 3 hereof or any other provision of this Agreement; (iii) only during the period thirty (30) days prior to the termination of the Standstill Period, identifying potential director candidates to serve on the Board, so long as such actions do not create a public disclosure obligation for the Ancora Parties or the Corporation, are not publicly disclosed by the Ancora Parties or its Affiliates and are undertaken on a basis reasonably designed to be confidential; (iv) making or sending private communications to investors in any Member of the Ancora Parties or any of their Affiliates, provided that such statements or communications (1) are based on publicly available information, (2) are not reasonably expected to be publicly disclosed and are understood by all parties to be confidential communications, and (3) pertain to the investor’s investment in the Ancora Parties or any of their Affiliates; or (v) taking any action to the extent necessary to comply with any law, rule or regulation or any action required by any governmental or regulatory authority or stock exchange that has, or may have, jurisdiction over any Member of the Ancora Parties. Furthermore, for the avoidance of doubt, nothing in this Agreement shall be deemed to restrict in any way any New Independent Director (or any Replacement Director, as applicable) in the exercise of his or her fiduciary duties under applicable law as a director of the Corporation.
b. In respect of any vote or consent of the Corporation’s shareholders during the Standstill Period (whether at an annual or special shareholder meeting or pursuant to an action by written consent of the shareholders), the Ancora Parties and the Members of the Ancora Parties shall appear or act in person or by proxy and vote all shares of Common Stock Beneficially Owned by them in accordance with the recommendation of the Board with respect to (i) the election, removal and/or replacement of directors (a “Director Proposal”), (ii) the ratification of the appointment of the Corporation’s independent registered public accounting firm and (iii) any other proposal submitted to the Corporation’s shareholders at a Shareholder Meeting, in each case as such recommendation of the Board is set forth in the applicable definitive proxy statement filed in respect thereof; provided, however, that in the event Institutional Shareholder Services Inc. (“ISS”) and Glass Lewis & Co., LLC (“Glass Lewis”) make a recommendation that differs from the recommendation of the Board with respect to any proposal submitted to the shareholders at any Shareholder Meeting (other than Director Proposals), the Ancora Parties and the Members of the Ancora Parties are permitted to vote the shares of Common Stock Beneficially Owned by them at such Shareholder Meeting in accordance with the ISS or G▇▇▇▇ ▇▇▇▇▇ recommendation; provided, further, that the Ancora 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 (A) to any publicly announced proposal relating to any transaction pursuant to which any person is or becomes a Beneficial Owner, directly or indirectly, of securities of the Corporation representing more than 50% of the Corporation’s then outstanding equity interest and voting power, a merger, stock for stock transaction, acquisition, disposition of all or substantially all of the assets of the Corporation and its subsidiaries or other business combination involving the Corporation or (B) any financing, recapitalization, restructuring, share issuance or similar extraordinary transaction, in each case, that requires a vote of the Corporation’s shareholders.
Appears in 1 contract