Voting and Support. (a) During the Voting and Support Period (as such term is hereinafter defined), the Scopia Parties hereby irrevocably and unconditionally agree, (I) at the Company’s 2017 annual meeting of stockholders and (II) at any special meeting of Company stockholders called for the purposes of obtaining Requisite Stockholder Approval (as such term in hereinafter defined), however called, including any postponement or adjournment thereof, in each case to the extent relating to or reasonably expected to affect or concern the Reclassification, that the Scopia Parties shall cause all shares of Common Stock beneficially owned, directly or indirectly, by them, and by any of their Associates as of the record dates for any annual or special meeting of Company stockholders, to appear, in person or by proxy, at each such meeting or otherwise cause such shares of Common Stock to be counted as present thereat for purposes of determining a quorum, and vote (or cause to be voted), in person or by proxy (returned sufficiently in advance of the deadline for proxy voting for the Company to have the reasonable opportunity to verify receipt), such shares of Common Stock (A) in favor of any and all persons nominated by the Board of Directors of the Company (the “Board”) for election as directors at such meetings, provided, that such nominees are selected in accordance with Section 5.8 of the Reclassification and at least eight of the thirteen nominees have been determined to be independent directors by the Board in accordance with relevant stock exchange rules, (B) in favor of approving the Proposed Amendments and any action reasonably requested by the Company in furtherance of the foregoing, including any proposal to postpone or adjourn any meeting of Company stockholders at which the Proposed Amendments are submitted for the consideration and vote of Company stockholders to a later date if there are not sufficient votes for approval of such matters or to establish a quorum on the date on which the meeting is held, (C) unless otherwise directed in writing by the Special Committee, against any action, agreement or transaction that would reasonably be expected to (1) be inconsistent with or contrary to the terms and conditions of the Proposed Amendments or (2) result in any of the conditions set forth in Article VI of the Reclassification Agreement not being satisfied on or before the Outside Date, (D) unless otherwise directed in writing by the Special Committee, against any change in the Board, provided, that the nominees selected by the Company are selected in accordance with Section 5.8 of the Reclassification Agreement and at least eight of the thirteen nominees have been determined to be independent directors by the Board in accordance with relevant stock exchange rules, and (E) against any other action, agreement or transaction involving the Company or any of its subsidiaries or the Board that is intended, or would reasonably be expected, to prevent or impair or delay the consummation of the Reclassification or the other transactions contemplated by the Reclassification Agreement or the performance by the Company of its obligations under the Reclassification Agreement, including any change in the present capitalization of the Company or any amendment or other change to the charter of the Company (other than the Proposed Amendments) or the Company bylaws. (b) During the Voting and Support Period, the Scopia Parties further agree not to, and shall cause their Associates not to, directly or indirectly and in any manner, (A) submit any proposal for consideration by, or bring any other business before, the Company stockholders or initiate, encourage or participate in any “Withhold” or similar campaign against the Company or its directors or management, (B) make, or cause to be made, any statement, announcement or public filing with respect to any proposal or matter to be considered by Company stockholders, whether at any annual or special meeting of Company stockholders or with respect to any request or call for a special meeting or otherwise, which statement, announcement or public filing is inconsistent with any recommendation by the Board, and (C) publicly or privately encourage or support any stockholder or other person to take any of the actions in the foregoing clauses (A)-(B). (c) During the Voting and Support Period, the Scopia Parties will not in any manner, and shall cause their Associates to not, directly or indirectly, absent prior express invitation or authorization by the Board pursuant to a resolution of the Board: (i) seek to call, request the call of, or call or make application to a court or other person to call, order, requisition or administer, a special or other meeting of the Company stockholders, seek to make or make, present, conduct, participate or engage in any stockholder proposals of any kind or other type of referendum (binding or precatory), including nominations for, elections of or removal of directors (and including nominations for director nominees to be included in the Company’s proxy materials), for consideration at any annual or special meeting of Company stockholders, through action by written consent or otherwise, or seek to make or make, engage in or participate in any solicitation of proxies or consents (whether or not such solicitation is exempt under Rule 14a-2 of the Exchange Act) or other authority to vote any securities of the Company with respect to nominations for, elections of or removal of directors or any other proposal or business (binding or non-binding) to be considered by the Company’s stockholders, whether at an annual or special meeting of stockholders, regarding the call of a special meeting of stockholders or through action by written consent or otherwise; (ii) encourage, advise or influence any other person or assist any person in so encouraging, assisting or influencing any person with respect to the giving or withholding of any proxy, consent or other authority to vote or in conducting any type of referendum (other than such encouragement, advice or influence that is consistent with the Board or Company management’s recommendation in connection with such matter); (iii) form or join in a partnership, limited partnership, syndicate or other group, including a group as defined under Section 13(d) of the Exchange Act or other applicable law, with respect to the Common Stock (for the avoidance of doubt, excluding any group comprised solely of the Scopia Parties and their Associates), or otherwise support or participate in any effort by any person, with respect to the matters set forth in this Section 3(c); (iv) initiate or take any action to alter the composition of the Board or management or initiate or take any action to obtain additional representation on the Board; provided, that nominees selected by the Company for election at the 2017 Annual Meeting are selected in accordance with Section 5.8 of the Reclassification Agreement and at least eight of the thirteen nominees have been determined to be independent directors by the Board in accordance with relevant stock exchange rules; (v) institute, solicit or join, as a party, any litigation, arbitration or other proceeding against the Company or any of its subsidiaries or any of their respective current or former directors or officers (including derivative actions), other than litigation by the Scopia Parties to enforce the provisions of this Agreement; (vi) other than in (i) market transactions where the identity of the purchaser is not known, (ii) underwritten public offerings and (iii) bought deals, sell, offer or agree to sell directly or indirectly, through swap, hedging or derivative transactions or otherwise, any securities of the Company, or any rights decoupled from the underlying shares of Common Stock held by the Scopia Parties to any person that is not a party to this Agreement (a “Third Party”) unless (A) such Third Party is a passive investor that has not filed a Schedule 13D and would not as a result of the purchase of the securities of the Company be required to file a Schedule 13D, and (B) such sale, offer, or agreement to sell would not knowingly result in such Third Party, together with its affiliates, owning, controlling or otherwise having any beneficial or other ownership interest in the aggregate that is the equivalent of five percent (5%) or more of the Common Stock outstanding at such time or would increase the beneficial or other ownership interest of any Third Party who, together with its affiliates, has a beneficial or other ownership interest in the aggregate that is the equivalent of five percent (5%) or more of the Voting Securities outstanding at such time, except in each case in a transaction approved in advance by the Board; (vii) make any statement or announcement that constitutes an ad hominem attack on, or otherwise disparages or causes to be disparaged, the Company, any of the Company’s Affiliates, or any of the Company’s past, present or future officers or directors; and (viii) enter into any discussions or arrangements with any person with respect to any of the foregoing or disclose publicly or privately in any manner any intention, plan or arrangement that is inconsistent with the foregoing. (d) During the Voting and Support Period, the Company hereby agrees that (i) it shall comply with Sections 5.1 and 5.8 of the Reclassification Agreement and enforce its rights thereunder, and shall seek to ensure at least eight of the thirteen nominees for election as directors at the 2017 Annual Meeting have been determined to be independent directors by the Board in accordance with relevant stock exchange rules and (ii) it shall not amend the Exchange Ratio or the Outside Date, in each case, as defined in the Reclassification Agreement nor shall it amend in any material respect Sections 5.1 or 5.8 of the Reclassification Agreement (and such amendment, a “Material Breach”). For the avoidance of doubt, any change to or extension of the Outside Date shall be deemed a violation of clause (ii) of the previous sentence, in spite of the fact that the definition thereof in the Reclassification Agreement includes extensions as agreed between the parties to the Reclassification Agreement. The parties agree that notwithstanding anything in this Agreement to the contrary, in the event the Company breaches clause (ii) of this paragraph, the sole and exclusive remedy of the Scopia Parties shall be specific performance and the Scopia Parties hereby waive, to the extent they may do so, any other rights or remedies that would otherwise have been available to them under common law (including monetary damages) or otherwise.
Appears in 1 contract
Sources: Voting and Support Agreement (Forest City Realty Trust, Inc.)
Voting and Support. The Purchaser hereby agrees, from the date hereof until the termination of this Agreement in accordance with its terms, that:
(a) During at any meeting of the Voting and Support Period Company Shareholders called to vote upon the Transaction Resolutions (as such term including the Meeting) or at any adjournment or postponement thereof or in any other circumstance upon which a vote, consent or other approval with respect to the Transaction Resolutions is hereinafter definedsought (including by written consent in lieu of a meeting), to vote or to cause to be voted all voting rights attaching to the Scopia Parties hereby irrevocably Subject Shares in favour of: (i) the Transaction Resolutions and unconditionally agree, (Iii) at any other matter necessary for the approval of the Transaction Resolutions (including in favour of all related matters reasonably recommended by the Board or management of the Company’s 2017 annual meeting of stockholders and );
(IIb) at any special meeting of the Company stockholders Shareholders called for to vote upon the purposes Transaction Resolutions (including the Meeting) or at any adjournment or postponement thereof or in any other circumstance upon which a vote, consent or other approval of obtaining Requisite Stockholder Approval all or some of the Company Shareholders is sought (as such term including by written consent in hereinafter definedlieu of a meeting), however called, including any postponement to vote or adjournment thereof, in each case to the extent relating to or reasonably expected to affect or concern the Reclassification, that the Scopia Parties shall cause all shares of Common Stock beneficially owned, directly or indirectly, by them, and by any of their Associates as of the record dates for any annual or special meeting of Company stockholders, to appear, in person or by proxy, at each such meeting or otherwise cause such shares of Common Stock to be counted as present thereat for purposes of determining a quorum, and vote (or cause to be voted), in person or by proxy (returned sufficiently in advance of voted all voting rights attaching to the deadline for proxy voting for the Company to have the reasonable opportunity to verify receipt), such shares of Common Stock (A) in favor of any and all persons nominated by the Board of Directors of the Company (the “Board”) for election as directors at such meetings, provided, that such nominees are selected in accordance with Section 5.8 of the Reclassification and at least eight of the thirteen nominees have been determined to be independent directors by the Board in accordance with relevant stock exchange rules, (B) in favor of approving the Proposed Amendments and any action reasonably requested by the Company in furtherance of the foregoing, including any proposal to postpone or adjourn any meeting of Company stockholders at which the Proposed Amendments are submitted for the consideration and vote of Company stockholders to a later date if there are not sufficient votes for approval of such matters or to establish a quorum on the date on which the meeting is held, (C) unless otherwise directed in writing by the Special Committee, Subject Shares against any action, proposal, transaction or agreement or transaction that would could reasonably be expected to impede, delay, prevent, interfere with, frustrate or discourage the approval of the Transaction Resolutions;
(1c) be inconsistent with or contrary no later than five (5) Business Days prior to the terms and conditions deadline for the delivery of proxies in respect of the Proposed Amendments Meeting, to deliver or (2) result in any of the conditions set forth in Article VI of the Reclassification Agreement not being satisfied on or before the Outside Date, (D) unless otherwise directed in writing by the Special Committee, against any change in the Board, provided, that the nominees selected by to cause to be delivered to the Company are selected or its transfer agent, in accordance with Section 5.8 the instructions to be set out in the Circular, duly executed proxies or voting instruction forms, as the case may be, voting in favour of the Reclassification Agreement and at least eight Transaction Resolutions, such proxy or voting instruction forms not to be revoked or withdrawn without the prior written consent of the thirteen nominees have been determined to be independent directors by the Board in accordance with relevant stock exchange rules, and (E) against any other action, agreement or transaction involving the Company or any of its subsidiaries or the Board that is intended, or would reasonably be expected, to prevent or impair or delay the consummation of the Reclassification or the other transactions contemplated by the Reclassification Agreement or the performance by the Company of its obligations under the Reclassification Agreement, including any change in the present capitalization of the Company or any amendment or other change to the charter of the Company (other than the Proposed Amendments) or the Company bylaws.Company;
(bd) During until such time as the Voting and Support Periodrecord date for the Meeting has passed, the Scopia Parties further agree not to, and shall cause their Associates not to, directly or indirectly and in any manner, (A) submit any proposal for consideration by, or bring any other business before, the Company stockholders or initiate, encourage or participate in any “Withhold” or similar campaign against the Company or its directors or management, (B) make, or cause to be made, any statement, announcement or public filing with respect to any proposal or matter to be considered by Company stockholders, whether at any annual or special meeting of Company stockholders or with respect to any request or call for a special meeting or otherwise, which statement, announcement or public filing is inconsistent with any recommendation by the Board, and (C) publicly or privately encourage or support any stockholder or other person to take any of the actions in the foregoing clauses (A)-(B).
(c) During the Voting and Support Period, the Scopia Parties will not in any manner, and shall cause their Associates to not, directly or indirectly, absent prior express invitation or authorization by the Board pursuant to a resolution of the Board:
(i) seek to callsell, request the call oftransfer, gift, assign, grant a participation interest in, option, pledge, hypothecate, grant a security or voting interest in or otherwise convey or encumber (each, a "Transfer"), or call or make application to a court enter into any agreement, option or other person to callarrangement (including any profit sharing arrangement, order, requisition or administer, a special forward sale or other meeting of the Company stockholders, seek to make or make, present, conduct, participate or engage in any stockholder proposals of any kind or other type of referendum (binding or precatory), including nominations for, elections of or removal of directors (and including nominations for director nominees to be included in the Company’s proxy materials), for consideration at any annual or special meeting of Company stockholders, through action by written consent or otherwise, or seek to make or make, engage in or participate in any solicitation of proxies or consents (whether or not such solicitation is exempt under Rule 14a-2 of the Exchange Actmonetization arrangement) or other authority to vote any securities of the Company with respect to nominations for, elections of or removal of directors or any other proposal or business (binding or non-binding) to be considered by the Company’s stockholders, whether at an annual or special meeting of stockholders, regarding the call of a special meeting of stockholders or through action by written consent or otherwise;
(ii) encourage, advise or influence any other person or assist any person in so encouraging, assisting or influencing any person with respect to the giving or withholding Transfer of any proxyof its Subject Shares to any Person; or (ii) agree to take any actions described in the foregoing clause (i); and
(e) except as required pursuant to this Agreement (including to give effect to clauses (a) and (b) above), consent not to grant or agree to grant any proxy or other authority right to vote the Subject Shares or enter into any voting trust or pooling agreement or arrangement in conducting any type of referendum (other than such encouragement, advice or influence that is consistent with the Board or Company management’s recommendation in connection with such matter);
(iii) form or join in a partnership, limited partnership, syndicate or other group, including a group as defined under Section 13(d) respect of the Exchange Act Subject Shares or enter into or subject any of the Subject Shares to any other applicable lawagreement, arrangement, understanding or commitment, formal or informal, with respect to the Common Stock (for the avoidance of doubt, excluding any group comprised solely of the Scopia Parties and their Associates), or otherwise support or participate in any effort by any person, with respect relating to the matters set forth in this Section 3(c);
(iv) initiate voting or take tendering thereof or revoke any action to alter the composition of the Board proxy granted or management or initiate or take any action to obtain additional representation on the Board; provided, that nominees selected by the Company for election at the 2017 Annual Meeting are selected in accordance with Section 5.8 of the Reclassification Agreement and at least eight of the thirteen nominees have been determined required to be independent directors by the Board in accordance with relevant stock exchange rules;
(v) institute, solicit or join, as a party, any litigation, arbitration or other proceeding against the Company or any of its subsidiaries or any of their respective current or former directors or officers (including derivative actions), other than litigation by the Scopia Parties granted pursuant to enforce the provisions of this Agreement;
(vi) other than in (i) market transactions where the identity of the purchaser is not known, (ii) underwritten public offerings and (iii) bought deals, sell, offer or agree to sell directly or indirectly, through swap, hedging or derivative transactions or otherwise, any securities of the Company, or any rights decoupled from the underlying shares of Common Stock held by the Scopia Parties to any person that is not a party to this Agreement (a “Third Party”) unless (A) such Third Party is a passive investor that has not filed a Schedule 13D and would not as a result of the purchase of the securities of the Company be required to file a Schedule 13D, and (B) such sale, offer, or agreement to sell would not knowingly result in such Third Party, together with its affiliates, owning, controlling or otherwise having any beneficial or other ownership interest in the aggregate that is the equivalent of five percent (5%) or more of the Common Stock outstanding at such time or would increase the beneficial or other ownership interest of any Third Party who, together with its affiliates, has a beneficial or other ownership interest in the aggregate that is the equivalent of five percent (5%) or more of the Voting Securities outstanding at such time, except in each case in a transaction approved in advance by the Board;
(vii) make any statement or announcement that constitutes an ad hominem attack on, or otherwise disparages or causes to be disparaged, the Company, any of the Company’s Affiliates, or any of the Company’s past, present or future officers or directors; and
(viii) enter into any discussions or arrangements with any person with respect to any of the foregoing or disclose publicly or privately in any manner any intention, plan or arrangement that is inconsistent with the foregoing.
(d) During the Voting and Support Period, the Company hereby agrees that (i) it shall comply with Sections 5.1 and 5.8 of the Reclassification Agreement and enforce its rights thereunder, and shall seek to ensure at least eight of the thirteen nominees for election as directors at the 2017 Annual Meeting have been determined to be independent directors by the Board in accordance with relevant stock exchange rules and (ii) it shall not amend the Exchange Ratio or the Outside Date, in each case, as defined in the Reclassification Agreement nor shall it amend in any material respect Sections 5.1 or 5.8 of the Reclassification Agreement (and such amendment, a “Material Breach”). For the avoidance of doubt, any change to or extension of the Outside Date shall be deemed a violation of clause (ii) of the previous sentence, in spite of the fact that the definition thereof in the Reclassification Agreement includes extensions as agreed between the parties to the Reclassification Agreement. The parties agree that notwithstanding anything in this Agreement to the contrary, in the event the Company breaches clause (ii) of this paragraph, the sole and exclusive remedy of the Scopia Parties shall be specific performance and the Scopia Parties hereby waive, to the extent they may do so, any other rights or remedies that would otherwise have been available to them under common law (including monetary damages) or otherwise.
Appears in 1 contract