MRH » Topics » 8.2 Change of control

This excerpt taken from the MRH 8-K filed Oct 29, 2008.

8.2         Change of control

 

(a)                                      If:

 

(i)        any sale, lease, exchange or other transfer (in one transaction or a series of related transactions) of all, or substantially all, of the assets of the Company occurs;

 

(ii)       any person or group of persons acting in concert (other than the Parent) gains control of the Company;

 

(iii)      during any period of two consecutive years, individuals who at the beginning of such period constituted the Board of Directors of the Company (together with any new or replacement directors whose election by the Board of Directors or whose nomination was approved by a vote of a majority of the Directors of the Company then still in office who are either directors or replacement directors at the beginning of such period or whose election or nomination for election was previously so approved) cease for any reason to constitute a majority of the Company’s Board of Directors then in office; or

 

(iv)      the Parent ceases to (x) be the single largest shareholder of the Company or (y) own directly or indirectly, shares in the Company that represent 10 per cent. or more of the combined voting power of the Company’s issued share capital at such time;

 

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The Company shall promptly notify the Agent upon becoming aware of that event whereupon:

 

(1)                    each Lender shall not thereafter be obliged to participate in any Utilisation or the Facility;
 
(2)                    the Agent shall, if a Lender so requires, by not less than five Business Days’ notice to the Company, cancel the Commitment of that Lender; and
 
(3)                    the Company shall, on such date as the Agent shall have specified, ensure that the liabilities of such Lender under or in respect of each Letter of Credit is reduced to zero or otherwise secured by providing Cash Collateral in an amount not less than such Lender’s Proportion of such Letter(s) of Credit and that Lender’s Commitment shall be reduced to zero.
 

(b)                                     For the purpose of paragraph (a) above “control” means:

 

(i)                        the power (whether by way of ownership of shares, proxy, contract, agency or otherwise) to:

 

(A)                cast, or control the casting of, more than one-half of the maximum number of votes that might be cast at a general meeting of the relevant entity, as the case may be; or
 
(B)                  appoint or remove all, or the majority, of the directors or other equivalent officers of the relevant entity, as the case may be; or
 
(C)                  give directions with respect to the operating and financial policies of the relevant entity which the directors or other equivalent officers of that relevant entity are obliged to comply with; or
 
(D)                 the holding of more than one-half of the issued share capital of the relevant entity (excluding any part of that issued share capital that carries no right to participate beyond a specified amount in a distribution of either profits or capital).
 

(c)                                      For the purpose of paragraph (a) above, “acting in concert” means, a group of persons who, pursuant to an agreement or understanding (whether formal or informal), actively co-operate, through the acquisition by any of them, either directly or indirectly, of shares in the Company, to obtain or consolidate control of the Company.

 

These excerpts taken from the MRH 10-K filed Feb 28, 2008.

10.          Change in Control

 

(a)  Effect of Change in Control.  If within 24 months following the occurrence of a Change in Control (as defined in subparagraph 10(b)) there is a Termination Without Cause (as defined in paragraph 9(aa)) or a Constructive Termination (as defined in paragraph 9(j)) of the employment of a participant, then, except as otherwise specifically provided in a Participant’s Award Agreement, and unless otherwise specifically prohibited under applicable laws, or by the rules and regulations of any governing governmental agencies or securities exchanges:

 

(i) any and all SARs granted hereunder shall become immediately exercisable;

 

(ii) any period(s) of restriction imposed on RSUs or Share Awards shall lapse; and

 

(iii) the target performance goals or payout opportunities attainable under all outstanding Awards of Performance Shares shall be deemed to have been fully attained for all then open performance periods.

 

(b) For purposes of this Plan, a “Change in Control” within the meaning of subparagraph 10(a) shall occur if:

 

(i) any “person” or “group” (within the meaning of Sections 12(d) and 14(d)(2) of the Exchange Act, other than the Company or one of its subsidiaries, becomes the “beneficial owner” (within the meaning of Rule 13d-3 under the Exchange Act) of thirty-five percent (35%) or more of the Company’s then outstanding Shares; provided, however, that

 

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if all or substantially all of the individuals and entities who were the “beneficial owners” of the Company’s outstanding Shares immediately prior to such acquisition beneficially own, directly or indirectly, more than fifty percent (50%) of the outstanding Shares of the “person” or “group” that acquired the Company’s Shares (the “Successor Entity”) in substantially the same proportions as their ownership immediately prior to such Successor Entity’s acquisition of the Company’s then outstanding Shares, such acquisition shall not constitute a Change in Control; provided, further, that for purposes of this subparagraph 10(b)(i), the following acquisitions (or changes in beneficial ownership resulting from the following acquisitions) shall not constitute a Change in Control: (A) any acquisition by the Company or (B) any acquisition by an employee benefit plan (or related trust) sponsored or maintained by the Company or any entity controlled by the Company;

 

(ii) the Continuing Directors, as defined in subparagraph 10(c), cease for any reason to constitute a majority of the Board; or

 

(iii) the business of the Company for which the Participant’s services are principally performed is disposed of by the Company pursuant to a sale or other disposition of all or substantially all of the business or business related assets of the Company (including the sale or disposition of shares of a subsidiary of the Company).

 

(c) For the purposes of this Plan, “Continuing Director” shall mean a member of the Board (i) who is not an employee of the Company or its subsidiaries or a holder of, or an employee or an affiliate of an entity or group that holds, thirty-five percent (35%) or more of the Company’s Shares and (ii) who either was a member of the Board on January 1, 2007, or who subsequently became a director of the Company and whose election, or nomination for election, by the Company’s shareholders was approved by a vote of a majority of the Continuing Directors then on the Board (which term, for purposes of this definition, shall mean the whole Board and not any committee thereof). Any action, approval of which shall require the approval of a majority of the Continuing Directors, may be authorized by one Continuing Director, if he or she is the only Continuing Director on the Board, but no such action may be taken if there are not Continuing Directors on the Board.

 

10.          Change
in Control



 



(a)  Effect of
Change in Control
.  If within 24 months following the
occurrence of a Change in Control (as defined in subparagraph 10(b)) there is a
Termination Without Cause (as defined in paragraph 9(aa)) or a
Constructive Termination (as defined in paragraph 9(j)) of the employment
of a participant, then, except as otherwise specifically provided in a
Participant’s Award Agreement, and unless otherwise specifically prohibited
under applicable laws, or by the rules and regulations of any governing
governmental agencies or securities exchanges:



 



(i) any and all SARs granted hereunder shall
become immediately exercisable;



 



(ii) any period(s) of restriction imposed on
RSUs or Share Awards shall lapse; and



 



(iii) the target performance goals or payout
opportunities attainable under all outstanding Awards of Performance Shares
shall be deemed to have been fully attained for all then open performance
periods.



 



(b) For purposes of this Plan, a “Change in Control” within the meaning of subparagraph 10(a) shall occur if:



 



(i) any “person” or “group” (within the meaning
of Sections 12(d) and 14(d)(2) of the Exchange Act, other than
the Company or one of its subsidiaries, becomes the “beneficial owner” (within
the meaning of Rule 13d-3 under the Exchange Act) of thirty-five percent
(35%) or more of the Company’s then outstanding Shares; provided, however, that



 



6
















 



if all or
substantially all of the individuals and entities who were the “beneficial
owners” of the Company’s outstanding Shares immediately prior to such
acquisition beneficially own, directly or indirectly, more than fifty percent
(50%) of the outstanding Shares of the “person” or “group” that acquired the
Company’s Shares (the “Successor Entity”) in substantially the same proportions
as their ownership immediately prior to such Successor Entity’s acquisition of
the Company’s then outstanding Shares, such acquisition shall not constitute a
Change in Control; provided, further, that for purposes of this subparagraph
10(b)(i), the following acquisitions (or changes in beneficial ownership
resulting from the following acquisitions) shall not constitute a Change in
Control: (A) any acquisition by the Company or (B) any acquisition by
an employee benefit plan (or related trust) sponsored or maintained by the
Company or any entity controlled by the Company;



 



(ii) the Continuing Directors, as defined in
subparagraph 10(c), cease for any reason to constitute a majority of the Board;
or



 



(iii) the business of the Company for which the
Participant’s services are principally performed is disposed of by the Company
pursuant to a sale or other disposition of all or substantially all of the
business or business related assets of the Company (including the sale or
disposition of shares of a subsidiary of the Company).



 



(c) For the purposes of this Plan, “Continuing Director” shall mean a member of the Board (i) who is not an employee
of the Company or its subsidiaries or a holder of, or an employee or an
affiliate of an entity or group that holds, thirty-five percent (35%) or more
of the Company’s Shares and (ii) who either was a member of the Board on January 1,
2007, or who subsequently became a director of the Company and whose election,
or nomination for election, by the Company’s shareholders was approved by a
vote of a majority of the Continuing Directors then on the Board (which term,
for purposes of this definition, shall mean the whole Board and not any
committee thereof). Any action, approval of which shall require the approval of
a majority of the Continuing Directors, may be authorized by one Continuing
Director, if he or she is the only Continuing Director on the Board, but no
such action may be taken if there are not Continuing Directors on the Board.



 



This excerpt taken from the MRH DEF 14A filed Apr 11, 2007.
Change in Control
 
If, within 24 months following the occurrence of a change in control of the Company, a participant’s employment is terminated by the Company for a reason other than disability or cause, or by the participant following a constructive termination, then, except as otherwise provided in a participant’s award agreement and unless otherwise prohibited under applicable law, the target performance goals or payout opportunities attainable under all Performance Shares will be deemed to have been fully attained for all then open performance periods, the restriction periods imposed on all RSUs will lapse, and all SARs will become immediately exercisable. For purposes of the LTIP, the term “cause” means the willful gross negligence or misconduct by a participant that causes or is likely to cause material loss or damage to the Company, and the term “constructive termination” means a material decrease in a participant’s salary or bonus opportunity or a material diminution in authority, duties or responsibilities that prevents a participant from performing his job in the manner it was intended to be performed. The following events generally will constitute a “change in control” for purposes of the LTIP: (1) when any person or group (other than the Company and its subsidiaries) acquires beneficial ownership of more than 35% of the Company’s outstanding shares, (2) the Incumbent Directors and any subsequent directors whose election or nomination for election was approved by a majority of the Incumbent Directors cease to comprise a majority of the Board, or (3) the business of the Company in which a participant principally works is disposed of by a sale or disposition of all or substantially all of the business or business-related assets of the Company (including the sale or


33


 

disposition of the shares of a subsidiary of the Company). However, the Board has the discretion to determine prior to the occurrence of one of these events that such event will not constitute a change in control of the Company. The Board’s decision in this regard is final and binding on all parties.
 
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