Certain Other Matters. (a) So long as the Company has complied and is complying with its obligations set forth in this Agreement, from and after the date hereof until the later of (x) the conclusion of the 2013 Annual Meeting and (y) the date that an MHR Nominee is no longer a member of the Board (it being understood that if such an MHR Nominee is no longer a member of the Board due to circumstances in which the MHR Group would be entitled to appoint a Replacement pursuant to Section 2(a)(vi), an MHR Nominee shall be deemed to continue to be a member of the Board for all purposes of this Agreement until such time as the MHR Group irrevocably waives in writing any right to designate such a Replacement or appoints such a Replacement) (the later of the foregoing periods, the “Board Representation Period”), no member of the MHR Group shall, directly or indirectly, and each member of the MHR Group shall cause each MHR Affiliate not to, directly or indirectly, (i) solicit proxies or written consents of stockholders or conduct any other type of referendum (binding or non-binding) with respect to the Voting Securities (as defined below), or from the holders of the Voting Securities, or become a “participant” (as such term is defined in Instruction 3 to Item 4 of Schedule 14A promulgated under the Exchange Act) in 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 the Voting Securities (other than such encouragement, advice or influence that is consistent with Company management’s recommendation in connection with such matter), (ii) encourage, advise or influence any other person or assist any third party in so encouraging, assisting or influencing any person with respect to the giving or withholding of any proxy, consent or other authority to vote or in conducting any other type of referendum (other than such encouragement, advice or influence that is consistent with Company management’s recommendation in connection with such matter), (iii) form or join in a partnership, limited partnership, syndicate or other group, including without limitation a group as defined under Section 13(d) of the Exchange Act, with respect to the Voting Securities (it being understood that a Permitted Person (or Permitted Persons) as long as it is (or they are) such engaging in Permitted Activities (each as defined in the Rights Plan) shall not be deemed to be or create a “group” for purposes of this clause (iii)), or otherwise support or
Appears in 1 contract
Certain Other Matters. (a) So long as the Company has complied and is complying with its obligations set forth in this AgreementAmendment, from and after the date hereof of this Amendment until the later of (x) the conclusion of first business day following the 2013 2014 Annual Meeting and (y) the 10th business day following the date that an MHR no Icahn Nominee is no longer a member of the Board (it being understood that if such an MHR no Icahn Nominee is no longer a member of the Board due to circumstances in which the MHR Icahn Group would be entitled to appoint designate a Replacement pursuant to Section 2(a)(vi1(c)(iii), an MHR Icahn Nominee shall be deemed to continue to be a member of the Board for all purposes of this Agreement until such time as the MHR Icahn Group irrevocably waives in writing any right to designate such a Replacement or appoints designates such a Replacement) (the later of the foregoing periods, the “Board Representation Period”), except as expressly permitted by the terms of this Amendment, no member of the MHR Icahn Group shall, directly or indirectly, and each member of the MHR Icahn Group shall cause each MHR Icahn Affiliate not to, directly or indirectly, (i) solicit proxies or written consents of stockholders or conduct any other type of referendum (binding or non-binding) with respect to the Voting Securities (as defined below), or from the holders of the Voting Securities, or become a “participant” (as such term is defined in Instruction 3 to Item 4 of Schedule 14A promulgated under the Exchange Act) in 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 the Voting Securities (other than such encouragement, advice or influence that is consistent with Company management’s recommendation in connection with such matter), (ii) encourage, advise or influence any other person or assist any third party in so encouraging, assisting or influencing any person with respect to the giving or withholding of any proxy, consent or other authority to vote or in conducting any other type of referendum (other than such encouragement, advice or influence that is consistent with Company management’s recommendation in connection with such matter), (iii) form or join in a partnership, limited partnership, syndicate or other group, including without limitation a group as defined under Section 13(d) of the Exchange Act, with respect to the Voting Securities (it being understood that a Permitted Person (or Permitted Persons) ), as long as it is (or they are) such such, engaging in Permitted Activities (each as defined in the Rights PlanAgreement) shall not be deemed to be or create a “partnership, limited partnership, syndicate or other group” , including without limitation a group as defined under Section 13(d) of the Exchange Act, for purposes of this clause (iii)), or otherwise support oror participate in any effort by a third party with respect to the matters set forth in clause (i) above, (iv) present at any Annual Meeting or any special meeting of the Company’s stockholders any proposal for consideration for action by stockholders or (except as explicitly permitted by this Agreement) propose any nominee for election to the Board, other than through action at the Board by any Icahn Nominee acting in his or her capacity as such, (v) grant any proxy, consent or other authority to vote with respect to any matters (other than to the named proxies included in the Company’s proxy card for any annual meeting of stockholders (an “Annual Meeting”)) or deposit any of the Voting Securities held by the Icahn Group or the Icahn Affiliates in a voting trust or subject them to a voting agreement or other arrangement of similar effect with respect to any Annual Meeting except as provided in Section 2(b) below, (vi) make any request under Section 220 of the Delaware General Corporation Law, (vii) make, or cause to be made, by press release or similar public statement to the press or media, any statement or announcement that constitutes an ad hominem attack on, or otherwise disparages (as distinct from objective statements reflecting business criticism), the Company, its officers or its directors or any person who has served as an officer or director of the Company in the past or (viii) institute, solicit, assist or join, as a party, any litigation, arbitration or other proceeding against or involving the Company or any of its current or former directors or officers (including derivative actions). As used in this Agreement, the term “
Appears in 1 contract
Samples: Rights Agreement (Icahn Carl C)
Certain Other Matters. (a) So long as The parties acknowledge that an Icahn Designee may resign from the Company has complied and is complying with its obligations set forth in this Agreement, from and after Board at any time by giving at least forty-five days prior written notice to the Board. From the date hereof of this Agreement until the later of (x) the conclusion of the 2013 Annual Meeting and (y) the date that an MHR Nominee no Icahn Designee is no longer a member of the Board (it being understood that if such an MHR Nominee Icahn Designee is no longer a member of the Board due to circumstances in which the MHR Icahn Group would be entitled to appoint a Replacement pursuant to Section 2(a)(vi)Replacement, an MHR Nominee Icahn Designee shall be deemed to continue to be a member of the Board for all purposes of this Agreement until such time as the MHR Icahn Group irrevocably waives in writing any right to designate such a Replacement or appoints such a ReplacementReplacement (the “Replacement Waiver”); provided that if an Icahn Designee resigns and fails to give at least forty-five days prior notice to the Board of such resignation, an Icahn Designee shall be deemed to continue to be a member of the Board for purposes of this Section 2(a) (of this Agreement until the forty-fifth day following the later of (x) the foregoing periodseffective date of such resignation and (y) the date of the Replacement Waiver) (such period, the “Board Representation Period”), so long as the Company has not materially breached this Agreement and failed to cure such breach within five business days of written notice from the Icahn Group specifying any such breach, no member of the MHR Icahn Group shall, directly or indirectly, and each member of the MHR Icahn Group shall cause each MHR Icahn Affiliate not to, directly or indirectly, (i) solicit proxies or written consents of stockholders or conduct any other type of referendum (binding or non-binding) with respect to the Voting Securities (as defined below), or from the holders of the Voting Securities, or become a “participant” (as such term is defined in Instruction 3 to Item 4 of Schedule 14A promulgated under the Exchange Act) in 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 the Voting Securities (other than such encouragement, advice or influence that is consistent with Company management’s recommendation in connection with such matter), (ii) encourage, advise or influence any other person or assist any third party in so encouraging, assisting or influencing any person with respect to the giving or withholding of any proxy, consent or other authority to vote or in conducting any other type of referendum (other than such encouragement, advice or influence that is consistent with Company management’s recommendation in connection with such matter), (iii) form or join in a partnership, limited partnership, syndicate or other group, including without limitation a group as defined under Section 13(d) of the Exchange Act, with respect to the Voting Securities indirectly (it being understood and agreed that a Permitted Person (or Permitted Persons) as long as it is (or they are) such engaging in Permitted Activities (each as defined in the Rights Plan) following restrictions shall not be deemed apply to be any Icahn Designee or create Replacement solely in such person’s capacity as a “group” for purposes director of this clause (iii)), or otherwise support orthe Company):
Appears in 1 contract
Samples: Nomination and Standstill Agreement (Talisman Energy Inc)
Certain Other Matters. (a) So long as The parties acknowledge that an Icahn Designee may resign from the Company has complied and is complying with its obligations set forth in this Agreement, from and after Board at any time by giving at least twenty-five (25) calendar days prior written notice to the Board. From the date hereof of this Agreement until the later of (x) the conclusion of the 2013 2015 Annual Meeting and (y) the date that an MHR Nominee no Icahn Designee is no longer a member of the Board (it being understood that if such an MHR Nominee Icahn Designee is no longer a member of the Board due to circumstances in which the MHR Icahn Group would be entitled to appoint a Replacement pursuant to Section 2(a)(vi)Replacement, an MHR Nominee Icahn Designee shall be deemed to continue to be a member of the Board for all purposes of this Agreement until such time as the MHR Icahn Group irrevocably waives in writing any right to designate such a Replacement or appoints such a ReplacementReplacement (the “Replacement Waiver”); provided that if an Icahn Designee resigns and fails to give at least twenty-five (25) calendar days prior notice to the Board of such resignation, an Icahn Designee shall be deemed to continue to be a member of the Board for purposes of this Section 2(a) of this Agreement until the twenty-fifth (25th) day following the later of (A) the foregoing periodseffective date of such resignation and (B) the date of the Replacement Waiver) (such period, the “Board Representation Period”), so long as the Company has not materially breached this Agreement and failed to cure such breach within five (5) business days of written notice from any member of the Icahn Group specifying any such breach, no member of the MHR Icahn Group shall, directly or indirectly, and each member of the MHR Icahn Group shall cause each MHR Icahn Affiliate not to, directly or indirectly, (i) solicit proxies or written consents of stockholders or conduct any other type of referendum (binding or non-binding) with respect to the Voting Securities (as defined below), or from the holders of the Voting Securities, or become a “participant” (as such term is defined in Instruction 3 to Item 4 of Schedule 14A promulgated under the Exchange Act) in 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 the Voting Securities (other than such encouragement, advice or influence that is consistent with Company management’s recommendation in connection with such matter), (ii) encourage, advise or influence any other person or assist any third party in so encouraging, assisting or influencing any person with respect to the giving or withholding of any proxy, consent or other authority to vote or in conducting any other type of referendum (other than such encouragement, advice or influence that is consistent with Company management’s recommendation in connection with such matter), (iii) form or join in a partnership, limited partnership, syndicate or other group, including without limitation a group as defined under Section 13(d) of the Exchange Act, with respect to the Voting Securities indirectly (it being understood and agreed that none of the following restrictions shall apply to any Icahn Designee or Replacement solely in such person’s capacity as a Permitted Person (director of the Company or Permitted Persons) as long as it is (in any way prevent or they are) restrict such engaging in Permitted Activities (each as defined director from raising any of the matters described in the Rights Plan) shall not be deemed to be or create a “group” for purposes following restrictions with other members of this clause the Board (iiisolely in their capacity as directors)), or otherwise support or):
Appears in 1 contract
Samples: Rights Agreement (Hertz Corp)
Certain Other Matters. (a) So long as the Company has complied and is complying with its obligations set forth in this AgreementAmendment, from and after the date hereof of this Amendment until the later of (x) the conclusion of first business day following the 2013 2014 Annual Meeting and (y) the 10th business day following the date that an MHR no Icahn Nominee is no longer a member of the Board (it being understood that if such an MHR no Icahn Nominee is no longer a member of the Board due to circumstances in which the MHR Icahn Group would be entitled to appoint designate a Replacement pursuant to Section 2(a)(vi1(c)(iii), an MHR Icahn Nominee shall be deemed to continue to be a member of the Board for all purposes of this Agreement until such time as the MHR Icahn Group irrevocably waives in writing any right to designate such a Replacement or appoints designates such a Replacement) (the later of the foregoing periods, the “Board Representation Period”), except as expressly permitted by the terms of this Amendment, no member of the MHR Icahn Group shall, directly or indirectly, and each member of the MHR Icahn Group shall cause each MHR Icahn Affiliate not to, directly or indirectly, (i) solicit proxies or written consents of stockholders or conduct any other type of referendum (binding or non-binding) with respect to the Voting Securities (as defined below), or from the holders of the Voting Securities, or become a “participant” (as such term is defined in Instruction 3 to Item 4 of Schedule 14A promulgated under the Exchange Act) in 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 the Voting Securities (other than such encouragement, advice or influence that is consistent with Company management’s recommendation in connection with such matter), (ii) encourage, advise or influence any other person or assist any third party in so encouraging, assisting or influencing any person with respect to the giving or withholding of any proxy, consent or other authority to vote or in conducting any other type of referendum (other than such encouragement, advice or influence that is consistent with Company management’s recommendation in connection with such matter), (iii) form or join in a partnership, limited partnership, syndicate or other group, including without limitation a group as defined under Section 13(d) of the Exchange Act, with respect to the Voting Securities (it being understood that a Permitted Person (or Permitted Persons) ), as long as it is (or they are) such such, engaging in Permitted Activities (each as defined in the Rights PlanAgreement) shall not be deemed to be or create a “partnership, limited partnership, syndicate or other group” , including without limitation a group as defined under Section 13(d) of the Exchange Act, for purposes of this clause (iii)), or otherwise support or participate in any effort by a third party with respect to the matters set forth in clause (i) above, (iv) present at any Annual Meeting or any special meeting of the Company’s stockholders any proposal for consideration for action by stockholders or (except as explicitly permitted by this Agreement) propose any nominee for election to the Board, other than through action at the Board by any Icahn Nominee acting in his or her capacity as such, (v) grant any proxy, consent or other authority to vote with respect to any matters (other than to the named proxies included in the Company’s proxy card for any annual meeting of stockholders (an “Annual Meeting”)) or deposit any of the Voting Securities held by the Icahn Group or the Icahn Affiliates in a voting trust or subject them to a voting agreement or other arrangement of similar effect with respect to any Annual Meeting except as provided in Section 2(b) below, (vi) make any request under Section 220 of the Delaware General Corporation Law, (vii) make, or cause to be made, by press release or similar public statement to the press or media, any statement or
Appears in 1 contract
Certain Other Matters. (a1) So long as The parties acknowledge that the Company has complied and is complying with its obligations set forth Sagard Capital Nominee may resign from the Board at any time in this Agreement, from and after his discretion. From the date hereof of this Agreement until the later of (x) the earlier of (A) the conclusion of the 2013 2016 Annual Meeting and (B) the date that the Sagard Capital Nominee is not elected at any annual general meeting of shareholders of the Company or at any special meeting of shareholders of the Company at which directors may be elected and (y) the date that an MHR the Sagard Capital Nominee is no longer a member of the Board (it being understood that (i) if such an MHR the Sagard Capital Nominee is no longer a member of the Board due to circumstances in which the MHR Group Sagard Capital would be entitled to appoint a Replacement pursuant to Section 2(a)(vi)Replacement, an MHR the Sagard Capital Nominee shall be deemed to continue to be a member of the Board for all purposes of this Agreement until such time as the MHR Group Sagard Capital irrevocably waives in writing any right to designate such a Replacement or appoints such a ReplacementReplacement (the “Replacement Waiver”); (ii) if the Sagard Capital Nominee resigns and fails to give at least forty-five (45) days prior notice to the Board of such resignation, the Sagard Capital Nominee shall be deemed to continue to be a member of the Board for purposes of this Section 2(1) of this Agreement until the forty-fifth day following the later of (x) the foregoing periodseffective date of such resignation and (y) the date of the Replacement Waiver); and (iii) in respect of the annual meeting of shareholders of the Company occurring in the calendar year ending December 31, 2017 or at any annual meeting of shareholders occurring thereafter, if Xxx Xxxxxxxxx is no longer a director, officer, partner, member, employee or agent of Sagard Capital or the Sagard Capital Affiliates at such time, and Sagard Capital notifies the Company no less than forty-five (45) days before the applicable advance notice deadline, as provided for in the Company’s Articles, that it does not intend to nominate a Sagard Capital Nominee pursuant to Section 1(1)(f), but the Board, in its sole discretion, includes Xxx Xxxxxxxxx in its slate of nominees for election to the Board, Xxx Xxxxxxxxx shall no longer be considered to be the Sagard Capital Nominee for purposes of this Section 2(1) as of the date of the applicable annual meeting of shareholders of the Company (such period, the “Board Representation Period”)), no member so long as the Company has not materially breached this Agreement and failed to cure such breach within five (5) business days following receipt by it of the MHR Group shallwritten notice from Sagard Capital specifying any such breach, Sagard Capital shall not, directly or indirectly, and each member of the MHR Group Sagard Capital shall cause each MHR Sagard Capital Affiliate not to, directly or indirectly, (i) solicit proxies or written consents of stockholders or conduct any other type of referendum (binding or non-binding) with respect to the Voting Securities (as defined below), or from the holders of the Voting Securities, or become a “participant” (as such term is defined in Instruction 3 to Item 4 of Schedule 14A promulgated under the Exchange Act) in 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 the Voting Securities (other than such encouragement, advice or influence that is consistent with Company management’s recommendation in connection with such matter), (ii) encourage, advise or influence any other person or assist any third party in so encouraging, assisting or influencing any person with respect to the giving or withholding of any proxy, consent or other authority to vote or in conducting any other type of referendum (other than such encouragement, advice or influence that is consistent with Company management’s recommendation in connection with such matter), (iii) form or join in a partnership, limited partnership, syndicate or other group, including without limitation a group as defined under Section 13(d) of the Exchange Act, with respect to the Voting Securities indirectly (it being understood and agreed that a Permitted Person (or Permitted Persons) as long as it is (or they are) such engaging in Permitted Activities (each as defined in the Rights Plan) following restrictions shall not be deemed apply to be the Sagard Capital Nominee or create Replacement solely in such person’s capacity as a “group” for purposes director of this clause (iii)), or otherwise support orthe Company):
Appears in 1 contract
Samples: Shareholder Nomination Agreement (Performance Sports Group Ltd.)
Certain Other Matters. (a) So long as the Company has complied and is complying with its obligations set forth in this AgreementAmendment, from and after the date hereof of this Amendment until the later of (x) the conclusion of first business day following the 2013 2014 Annual Meeting and (y) the 10th business day following the date that an no MHR Nominee is no longer a member of the Board (it being understood that if such an no MHR Nominee is no longer a member of the Board due to circumstances in which the MHR Group would be entitled to appoint designate a Replacement pursuant to Section 2(a)(vi1(c)(iii), an MHR Nominee shall be deemed to continue to be a member of the Board for all purposes of this Agreement until such time as the MHR Group irrevocably waives in writing any right to designate such a Replacement or appoints designates such a Replacement) (the later of the foregoing periods, the “Board Representation Period”), except as expressly permitted by the terms of this Amendment, no member of the MHR Group shall, directly or indirectly, and each member of the MHR Group shall cause each MHR Affiliate not to, directly or indirectly, (i) solicit proxies or written consents of stockholders or conduct any other type of referendum (binding or non-binding) with respect to the Voting Securities (as defined below), or from the holders of the Voting Securities, or become a “participant” (as such term is defined in Instruction 3 to Item 4 of Schedule 14A promulgated under the Exchange Act) in 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 the Voting Securities (other than such encouragement, advice or influence that is consistent with Company management’s recommendation in connection with such matter), (ii) encourage, advise or influence any other person or assist any third party in so encouraging, assisting or influencing any person with respect to the giving or withholding of any proxy, consent or other authority to vote or in conducting any other type of referendum (other than such encouragement, advice or influence that is consistent with Company management’s recommendation in connection with such matter), (iii) form or join in a partnership, limited partnership, syndicate or other group, including without limitation a group as defined under Section 13(d) of the Exchange Act, with respect to the Voting Securities (it being understood that a Permitted Person (or Permitted Persons) ), as long as it is (or they are) such such, engaging in Permitted Activities (each as defined in the Rights PlanAgreement) shall not be deemed to be or create a “partnership, limited partnership, syndicate or other group” , including without limitation a group as defined under Section 13(d) of the Exchange Act, for purposes of this clause (iii)), or otherwise support or participate in any effort by a third party with respect to the matters set forth in clause (i) above, (iv) present at any Annual Meeting or any special meeting of the Company’s stockholders any proposal for consideration for action by stockholders or (except as explicitly permitted by this Agreement) propose any nominee for election to the Board, other than through action at the Board by any MHR Nominee acting in his or her capacity as such, (v) grant any proxy, consent or other authority to vote with respect to any matters (other than to the named proxies included in the Company’s proxy card for any annual meeting of stockholders (an “Annual Meeting”)) or deposit any of the Voting Securities held by the MHR Group or the MHR Affiliates in a voting trust or subject them to a voting agreement or other arrangement of similar effect with respect to any Annual Meeting except as provided in Section 2(b) below, (vi) make any request under Section 220 of the Delaware General Corporation Law, (vii) make, or cause to be made, by press release or similar public statement to the press or media, any statement or
Appears in 1 contract
Certain Other Matters. (a) So long as the Company has complied and is complying with its obligations set forth in this Agreement, from and after the date hereof until the later of (x) the conclusion of the 2013 Annual Meeting and (y) the date that an MHR Icahn Nominee is no longer a member of the Board (it being understood that if such an MHR Icahn Nominee is no longer a member of the Board due to circumstances in which the MHR Icahn Group would be entitled to appoint a Replacement pursuant to Section 2(a)(vi), an MHR Icahn Nominee shall be deemed to continue to be a member of the Board for all purposes of this Agreement until such time as the MHR Icahn Group irrevocably waives in writing any right to designate such a Replacement or appoints such a Replacement) (the later of the foregoing periods, the “Board Representation Period”), no member of the MHR Icahn Group shall, directly or indirectly, and each member of the MHR Icahn Group shall cause each MHR Icahn Affiliate not to, directly or indirectly, (i) solicit proxies or written consents of stockholders or conduct any other type of referendum (binding or non-binding) with respect to the Voting Securities (as defined below), or from the holders of the Voting Securities, or become a “participant” (as such term is defined in Instruction 3 to Item 4 of Schedule 14A promulgated under the Exchange Act) in 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 the Voting Securities (other than such encouragement, advice or influence that is consistent with Company management’s recommendation in connection with such matter), (ii) encourage, advise or influence any other person or assist any third party in so encouraging, assisting or influencing any person with respect to the giving or withholding of any proxy, consent or other authority to vote or in conducting any other type of referendum (other than such encouragement, advice or influence that is consistent with Company management’s recommendation in connection with such matter), (iii) form or join in a partnership, limited partnership, syndicate or other group, including without limitation a group as defined under Section 13(d) of the Exchange Act, with respect to the Voting Securities (it being understood that a Permitted Person (or Permitted Persons) as long as it is (or they are) such engaging in Permitted Activities (each as defined in the Rights Plan) shall not be deemed to be or create a “group” for purposes of this clause (iii)), or otherwise support oror participate in any effort by a third party with respect to the matters set forth in clause (i) above, (iv) present at any Annual Meeting or any special meeting of the Company’s stockholders any proposal for consideration for action by stockholders or (except as explicitly permitted by this Agreement) propose any nominee for election to the Board, other than through action at the Board by the Icahn Nominee acting in his or her capacity as such, (v) grant any proxy, consent or other authority to vote with respect to any matters (other than to the named proxies included in the Company’s proxy card for any annual meeting of stockholders (an “Annual Meeting”)) or deposit any of the Voting Securities held by the Icahn Group or the Icahn Affiliates in a voting trust or subject them to a voting agreement or other arrangement of similar effect with respect to any Annual Meeting except as provided in Section 3(b) below, (vi) make any request under Section 220 of the Delaware General Corporation Law, (vii) make, or cause to be made, by press release or similar public statement to the press or media, any statement or announcement that constitutes an ad hominem attack on, or otherwise disparages (as distinct from objective statements reflecting business criticism), the Company, its officers or its directors or any person who has served as an officer or director of the Company in the past or (viii) institute, solicit, assist or join, as a party, any litigation, arbitration or other proceeding against or involving the Company or any of its current or former directors or officers (including derivative actions). As used in this Agreement, the term “
Appears in 1 contract
Samples: Settlement Agreement (Icahn Carl C)
Certain Other Matters. If immediately prior to the Separation Effective Time, the Icahn Group has, together with the Icahn Affiliates, at least the same Beneficial Ownership of Common Stock (aas defined below) So long as the Company it has complied and is complying with its obligations set forth in this Agreement, from and after as of the date hereof and the Icahn Group has not materially breached this Agreement or the Confidentiality Agreement and failed to cure such breach within five business days of written notice from the Company specifying any such breach, the Company will take such action (if it has not previously so acted) as permitted by law and necessary and appropriate to provide that, as of the Separation Effective Time and until the later of (x) the conclusion of the 2013 Annual Meeting and Standstill Period (y) such period, the date that an MHR Nominee is no longer a member of the Board (it being understood "Specified Period," provided that if such an MHR Nominee is no longer a member of the SpinCo Board due to circumstances in which the MHR Group would be entitled to appoint a Replacement Election has been made and SpinCo has elected pursuant to Section 2(a)(vi1(d) not to nominate the Icahn Nominee as a director for election at a Subsequent Meeting and the Icahn Nominee ceases to serve on the SpinCo Board prior to the conclusion of such Subsequent Meeting, then the Specified Period shall expire at the conclusion of such Subsequent Meeting), an MHR Nominee except as may be approved by the stockholders of the Company or the stockholders of SpinCo, as applicable: (i) the SpinCo Board is annually elected (i.e., not a "staggered" board); (ii) the provisions of SpinCo's certificate of incorporation and/or bylaws (but if only in the bylaws, then the provision granting stockholders such right to call special meetings may not be amended without a stockholder vote or restricted in the certificate of incorporation) enable a special meeting of stockholders to be requested by stockholders who meet reasonable requirements specified therein (including but not limited to advance notice, required disclosures, permitted matters and other terms which shall not in the aggregate be more restrictive than the stockholder special meeting rights provided for under the Company's bylaws as in effect as of the date hereof, provided that (X) the ownership threshold shall be deemed to continue to be a member at 20% of the Board for all purposes outstanding shares of this Agreement common stock of SpinCo (the "SpinCo Shares") as opposed to the 25% ownership threshold in the Company's current bylaws and (Y) until such time as after the MHR Group irrevocably waives in writing any right to designate such Separation Effective Time that a Replacement or appoints such a Replacement) (the later of the foregoing periods, the “Board Representation Period”), no member of the MHR Group shall, directly or indirectly, and each member of the MHR Group shall cause each MHR Affiliate not to, directly or indirectly, (i) solicit proxies or written consents of stockholders or conduct any other type of referendum (binding or non-binding) with respect to the Voting Securities (as defined below), or from the holders of the Voting Securities, or become a “participant” (as such term is defined in Instruction 3 to Item 4 of Schedule 14A promulgated under the Exchange Act) in 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 the Voting Securities (other than such encouragement, advice or influence that is consistent with Company management’s recommendation in connection with such matter), (ii) encourage, advise or influence any other single person or assist any third party in so encouraging, assisting entity (or influencing any person with respect to the giving "group" of persons or withholding of any proxy, consent or other authority to vote or in conducting any other type of referendum (other than such encouragement, advice or influence that is consistent with Company management’s recommendation in connection with such matter), (iii) form or join in entities who have filed as a partnership, limited partnership, syndicate or other "group, including without limitation a group " as defined under Section 13(d) of the Exchange ActAct with respect to their ownership in SpinCo) owns at least a majority of the outstanding stock of SpinCo, business at stockholder-called special meetings shall not be authorized to include the removal of directors or the election of directors, which matters shall only be taken by the stockholders at an annual meeting) and (Z) following such time after the Separation Effective Time that a single person or entity (or "group" of persons or entities who have filed as a "group" as defined under Section 13(d) of the Exchange Act with respect to their ownership in SpinCo) owns at least a majority of the outstanding stock of SpinCo, the removal and replacement of directors at a special meeting shall not require a vote of more than a majority of shares present and voted at such meeting; (iii) the provisions of neither SpinCo's certificate of incorporation nor its bylaws do not, except as required by law (or with respect to the Voting Securities DGCL 203-equivalent provisions referred to in clause (vi) below), impose minimum voting requirements for which matters subject to a stockholder vote are deemed approved greater than requiring approval from a majority of the outstanding SpinCo Shares; (iv) SpinCo will schedule its first annual meeting of stockholders following the Separation Effective Time no later than the twelve-month anniversary of the Separation Effective Time; (v) "stockholder rights plans" adopted by the SpinCo Board shall not have triggering "Acquiring Person" ownership thresholds below 19.9% of the then-outstanding SpinCo Shares and, if not ratified by stockholders within one hundred thirty-five days of their taking effect, shall automatically expire; (vi) SpinCo shall have elected to opt-out of application of DGCL 203 (it being understood that comparable provisions may be included in SpinCo's certificate of incorporation and/or bylaws but with a Permitted Person 20% ownership threshold instead of the 15% provided for in DGCL 203, amendment of which may be subject to the equivalent vote as would be required in DGCL 203), (or Permitted Personsvii) as long as it is (or they are) such engaging in Permitted Activities (each as defined in the Rights Plan) SpinCo shall not be deemed adopt or approve change-of-control provisions in material agreements (such as debt, equity compensation or severance arrangements) with ownership triggers below 20%, and (viii) if SpinCo receives a bona fide, binding premium offer from a third party (the "Initial Party") to acquire all of the outstanding shares of SpinCo and rejects that offer in favor of an offer from another party (the "Other Party") that the SpinCo Board deems superior, and if SpinCo engages in substantive negotiations with such Other Party and provides material non-public information to it and the Initial Party then makes a "topping" bona fide, binding premium bid that is superior to the Other Party's offer and requests non-public information from SpinCo, SpinCo will, subject to fiduciary duties and compliance with contractual arrangements, enter into a confidentiality agreement with the Initial Party that would enable non-competitively sensitive non-public information to be or create a “group” for purposes of this clause (iii)), or otherwise support orshared with such party.
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Certain Other Matters. (a) So long as The parties acknowledge that an Icahn Designee may resign from the Company has complied and is complying with its obligations set forth in this Agreement, from and after Board at any time by giving at least twenty-five (25) calendar days prior written notice to the Board. From the date hereof of this Agreement until the later of (xi) the conclusion of the 2013 2021 Annual Meeting Meeting, and (yii) the date that an MHR Nominee no Icahn Designee is no longer a member of the Board (it being understood that if such an MHR Nominee Icahn Designee is no longer a member of the Board due to circumstances in which the MHR Icahn Group would be entitled to appoint a Replacement pursuant to Section 2(a)(vi)Replacement, an MHR Nominee Icahn Designee shall be deemed to continue to be a member of the Board for all purposes of this Agreement until such time as the MHR Icahn Group irrevocably waives in writing any right to designate such a Replacement or appoints such a ReplacementReplacement (the “Replacement Waiver”); provided that if an Icahn Designee resigns and fails to give at least twenty-five (25) calendar days prior notice to the Board of such resignation, an Icahn Designee shall be deemed to continue to be a member of the Board for purposes of this Section 2(a) of this Agreement until the twenty-fifth (25th) day following the later of (A) the foregoing periodseffective date of such resignation and (B) the date of the Replacement Waiver) (such period, the “Board Representation Period”), so long as the Company has not materially breached this Agreement and failed to cure such breach within five (5) business days of written notice from any member of the Icahn Group specifying any such breach, no member of the MHR Icahn Group shall, directly or indirectly, and each member of the MHR Icahn Group shall cause each MHR Icahn Affiliate not to, directly or indirectly, (i) solicit proxies or written consents of stockholders or conduct any other type of referendum (binding or non-binding) with respect to the Voting Securities (as defined below), or from the holders of the Voting Securities, or become a “participant” (as such term is defined in Instruction 3 to Item 4 of Schedule 14A promulgated under the Exchange Act) in 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 the Voting Securities (other than such encouragement, advice or influence that is consistent with Company management’s recommendation in connection with such matter), (ii) encourage, advise or influence any other person or assist any third party in so encouraging, assisting or influencing any person with respect to the giving or withholding of any proxy, consent or other authority to vote or in conducting any other type of referendum (other than such encouragement, advice or influence that is consistent with Company management’s recommendation in connection with such matter), (iii) form or join in a partnership, limited partnership, syndicate or other group, including without limitation a group as defined under Section 13(d) of the Exchange Act, with respect to the Voting Securities indirectly (it being understood and agreed that none of the following restrictions shall apply to any Icahn Designee or Replacement solely in such person’s capacity as a Permitted Person (director of the Company or Permitted Persons) as long as it is (in any way prevent or they are) restrict such engaging in Permitted Activities (each as defined director from privately raising any of the matters described in the Rights Plan) shall not be deemed to be or create a “group” for purposes following restrictions with other members of this clause the Board (iiisolely in their capacity as directors)), or otherwise support or):
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Certain Other Matters. (a) So long as The parties acknowledge that the Company has complied and is complying with its obligations set forth in this Agreement, Dxxxxx Designee may resign from and after the Board at any time by giving at least twenty-five (25) calendar days prior written notice to the Board. From the date hereof of this Agreement until the later of (xi) the conclusion of the 2013 2021 Annual Meeting Meeting, and (yii) the date that an MHR Nominee the Dxxxxx Designee is no longer a member of the Board (it being understood that if such an MHR Nominee the Dxxxxx Designee is no longer a member of the Board due to circumstances in which the MHR Dxxxxx Group would be entitled to appoint a Replacement pursuant to Section 2(a)(vi)Replacement, an MHR Nominee the Dxxxxx Designee shall be deemed to continue to be a member of the Board for all purposes of this Agreement until such time as the MHR Dxxxxx Group irrevocably waives in writing any right to designate such a Replacement or appoints such a ReplacementReplacement (the “Replacement Waiver”); provided that if the Dxxxxx Designee resigns and fails to give at least twenty-five (25) calendar days prior notice to the Board of such resignation, the Dxxxxx Designee shall be deemed to continue to be a member of the Board for purposes of this Section 2(a) of this Agreement until the twenty-fifth (25th) day following the later of (A) the foregoing periodseffective date of such resignation and (B) the date of the Replacement Waiver) (such period, the “Board Representation Period”), so long as the Company has not materially breached this Agreement and failed to cure such breach within five (5) business days of written notice from any member of the Dxxxxx Group specifying any such breach, no member of the MHR Dxxxxx Group shall, directly or indirectly, and each member of the MHR Dxxxxx Group shall cause each MHR Dxxxxx Affiliate not to, directly or indirectly, (i) solicit proxies or written consents of stockholders or conduct any other type of referendum (binding or non-binding) with respect to the Voting Securities (as defined below), or from the holders of the Voting Securities, or become a “participant” (as such term is defined in Instruction 3 to Item 4 of Schedule 14A promulgated under the Exchange Act) in 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 the Voting Securities (other than such encouragement, advice or influence that is consistent with Company management’s recommendation in connection with such matter), (ii) encourage, advise or influence any other person or assist any third party in so encouraging, assisting or influencing any person with respect to the giving or withholding of any proxy, consent or other authority to vote or in conducting any other type of referendum (other than such encouragement, advice or influence that is consistent with Company management’s recommendation in connection with such matter), (iii) form or join in a partnership, limited partnership, syndicate or other group, including without limitation a group as defined under Section 13(d) of the Exchange Act, with respect to the Voting Securities indirectly (it being understood and agreed that none of the following restrictions shall apply to the Dxxxxx Designee or Replacement solely in such person’s capacity as a Permitted Person (director of the Company or Permitted Persons) as long as it is (in any way prevent or they are) restrict such engaging in Permitted Activities (each as defined director from privately raising any of the matters described in the Rights Plan) shall not be deemed to be or create a “group” for purposes following restrictions with other members of this clause the Board (iiisolely in their capacity as directors)), or otherwise support or):
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Samples: Nomination and Standstill Agreement (Deason Darwin)
Certain Other Matters. (a) So long as the Company has complied and is complying with its obligations set forth in this Agreement, from and after the date hereof until the later of (x) the conclusion of the 2013 Annual Meeting and (y) the date that an MHR Icahn Nominee is no longer a member of the Board (it being understood that if such an MHR Icahn Nominee is no longer a member of the Board due to circumstances in which the MHR Icahn Group would be entitled to appoint a Replacement pursuant to Section 2(a)(vi), an MHR Icahn Nominee shall be deemed to continue to be a member of the Board for all purposes of this Agreement until such time as the MHR Icahn Group irrevocably waives in writing any right to designate such a Replacement or appoints such a Replacement) (the later of the foregoing periods, the “Board Representation Period”), no member of the MHR Icahn Group shall, directly or indirectly, and each member of the MHR Icahn Group shall cause each MHR Icahn Affiliate not to, directly or indirectly, (i) solicit proxies or written consents of stockholders or conduct any other type of referendum (binding or non-binding) with respect to the Voting Securities (as defined below), or from the holders of the Voting Securities, or become a “participant” (as such term is defined in Instruction 3 to Item 4 of Schedule 14A promulgated under the Exchange Act) in 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 the Voting Securities (other than such encouragement, advice or influence that is consistent with Company management’s recommendation in connection with such matter), (ii) encourage, advise or influence any other person or assist any third party in so encouraging, assisting or influencing any person with respect to the giving or withholding of any proxy, consent or other authority to vote or in conducting any other type of referendum (other than such encouragement, advice or influence that is consistent with Company management’s recommendation in connection with such matter), (iii) form or join in a partnership, limited partnership, syndicate or other group, including without limitation a group as defined under Section 13(d) of the Exchange Act, with respect to the Voting Securities (it being understood that a Permitted Person (or Permitted Persons) as long as it is (or they are) such engaging in Permitted Activities (each as defined in the Rights Plan) shall not be deemed to be or create a “group” for purposes of this clause (iii)), or otherwise support oror participate in any effort by a third party with respect to the matters set forth in clause (i) above, (iv) present at any Annual Meeting or any special meeting of the Company’s stockholders any
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