SETTLEMENT
AGREEMENT dated this 9th day of March 2009 (this “
Agreement ”), by and between TRT Holdings, Inc., a
Delaware corporation (“ TRT ”), and Gaylord
Entertainment Company, a Delaware corporation (the “
Company ”).
TRT (i) has
submitted to the Company notice by letter dated January 28,
2009 (the “ Notice ”) of its intention to
nominate four individuals for election to the Company’s Board
of Directors (the “ Board ”) at the 2009 annual
meeting of stockholders of the Company (the “ 2009 Annual
Meeting ”) and to solicit proxies for the election of its
nominees (the “ Proxy Solicitation ”) and
(ii) has taken certain actions in furtherance thereof,
including, but not limited to, requesting production of stockholder
list information pursuant to a letter dated January 15, 2009
and other communications related thereto, and requesting to inspect
the Company’s books and records pursuant to Section 220
of the Delaware General Corporation Law (the “ DGCL
”) pursuant to a letter dated January 23, 2009 (such
letters and related requests, the “ Demand
”).
TRT and the
Company have agreed that it is in their mutual interests to enter
into this Agreement, which, among other things, sets forth their
agreement regarding the nomination of certain candidates for
election to the Board at the 2009 Annual Meeting and the voting by
TRT of any shares of common stock, par value $0.01 per share, of
the Company (“ Common Stock ”) that TRT may own
from time to time.
THEREFORE
, in consideration of the foregoing and the respective
representations, warranties, covenants, agreements, and conditions
set forth in this Agreement, and, intending to be legally bound,
the parties agree as follows:
Section 1.
Board Action; Board Composition; Recommendation; Company
Proxy .
(a) As
a condition to the effectiveness of this Agreement:
(1) The
Company will, and the Company covenants and agrees to,
simultaneously with the execution and delivery of this Agreement,
enter into the Amended and Restated Rights Agreement between the
Company and Computershare Trust Company, N.A. (the “
Rights Agent” ) in the form attached hereto as
Schedule A (the “ A&R Rights Agreement
”) and deliver a copy of the A&R Rights Agreement, duly
executed by the Company and the Rights Agent.
(2) The
Company will, and the Company covenants and agrees to, deliver to
TRT a duly adopted, binding resolution of the Board, in form and
substance reasonably acceptable to TRT, (x) expressly
approving, for purposes of Section 203 of the DGCL (
“Section 203 ”), the acquisition by TRT and
its “affiliates” and “associates” (as those
terms are defined in Section 203), in a single transaction or
in a series of transactions, of additional shares of Common Stock
such that TRT and its “affiliates” and
“associates” (as defined in Section 203) may
“own” (as defined in Section 203) in excess of 15%
of the issued
and outstanding
Common Stock of the Company, and (y) providing that neither
TRT nor any of its “affiliates” or
“associates” (as defined in Section 203) will be
or be deemed to be an “interested stockholder” (as
defined in Section 203) if TRT and its
“affiliates” or “associates” (as defined in
Section 203) become the “owners” (as defined in
Section 203) of more than 15% of the issued and outstanding
Common Stock.
(3) In
order that TRT and its Affiliates, on the one hand, and the Company
and its Affiliates, on the other (each of TRT and its Affiliates,
on the one hand, and the Company and its Affiliates, on the other,
being a “ Renouncing Party ”), be able to
conduct their business without any liability to the other party
arising out of any claim against any of them for an interest in or
expectancy of participation in the business opportunity of the
Renouncing Party, each Renouncing Party does hereby irrevocably,
subject only to the following sentence, renounce (which action has
been duly taken by each Renouncing Party’s Board of
Directors) any interest or expectancy of each Renouncing Party in
or in being offered any opportunity to participate in, the business
opportunities of the other party or any of its Affiliates that are
presented to the Renouncing Party or one or more of such Renouncing
Party’s respective officers, directors, or stockholders to
the fullest extent permissible under Section 122(17) of the
DGCL. Notwithstanding the foregoing renunciation for the purposes
of Section 122(17) of the DGCL, TRT and the Company agree that
in the event that (i) any Permitted Recipient has (directly or
indirectly) communicated Confidential Information about a
particular business opportunity to TRT or any TRT Controlled Party
(other than a Permitted Recipient) or has used any Confidential
Information in breach of this Agreement in connection with a
particular business opportunity; and (ii) such Confidential
Information influenced the manner in which such business
opportunity was pursued by TRT or such TRT Controlled Party to the
detriment of the Company, then the renunciation in the foregoing
sentence will not be effective with respect to such business
opportunity, and each party will have all such rights, defenses,
claims, remedies, and liabilities as though such renunciation had
never occurred. The parties agree that the foregoing renunciation
pursuant to Section 122(17) of the DGCL does not affect any
other rights or remedies that may be available to the Company
against TRT or any TRT Controlled Party for wrongful disclosure of
information and will not be deemed to constitute the standard for
establishing the breach of any other duty owed by Rowling to the
Company or any defense available to TRT, Rowling, or any TRT
Controlled Party. In addition, the Company represents and warrants
that the Board has affirmed that no action taken or omitted to be
taken by TRT or any TRT Controlled Party in connection with any
business opportunity (other than with respect to communication or
use in breach of this Agreement of Confidential Information as set
forth above) will constitute the basis for the removal of any TRT
Nominee from the Board “for cause” in accordance with
Article VII(B)(5) of the Company’s Restated Certificate
of Incorporation.
(4) The
Company will, and the Company covenants and agrees to, deliver to
TRT a duly adopted resolution of the Board, in form and substance
reasonably acceptable to TRT, (x) affirming that the Board has
carefully considered this Agreement and its terms and, as a result
of such consideration, concluded that the Company’s execution
and performance of this Agreement are in the best interests of the
Company and its stockholders and (y) approving the
Company’s execution of this Agreement.
(b) The
Company agrees and acknowledges that by virtue of TRT’s entry
into this Agreement, TRT’s taking the actions required by
this Agreement, and the Company’s
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performance for
the benefit of TRT under this Agreement, neither TRT nor any of its
Affiliates is or will become an “Acquiring Person”
under the A&R Rights Agreement.
(c) The
Company agrees that as soon as practicable following the date of
this Agreement, the Company will set a date for the 2009 Annual
Meeting, which date will be no later than May 22, 2009, and
will establish a record date for the 2009 Annual Meeting, which
record date will be within sixty days of the date of the 2009
Annual Meeting.
(d) The
Company agrees that the Company and the Board will cause the size
of the Board to be set at eleven directors (and will maintain the
size of the Board at eleven directors), and will cause the slate of
nominees standing for election, and recommended by the Board, at
the 2009 Annual Meeting to include (x) seven incumbent
directors (the “ Incumbent Nominees ”),
(y) each of Robert B. Rowling and David W. Johnson (the
“ TRT Nominees ”) and (z) two other
qualified Independent directors identified by the Nominating and
Corporate Governance Committee of the Company (the “
Nominating and Corporate Governance Committee ”) after
consultation with the Company’s stockholders (including their
successor(s), the “ Other New Independent Nominees,
” and together with the TRT Nominees, the “ New
Independent Nominees, ” and the New Independent Nominees
together with the Incumbent Nominees, the “ 2009
Nominees ”), and specifically the Company agrees
to:
(1) nominate
and reflect in the 2009 Company Proxy (defined below) the
nomination of each of the 2009 Nominees (including the New
Independent Nominees) for election at the 2009 Annual Meeting as a
director of the Company with a term expiring at the 2010 annual
meeting of stockholders of the Company (the “ 2010 Annual
Meeting ”);
(2) recommend
and reflect in the 2009 Company Proxy the recommendation of each of
the 2009 Nominees (including the New Independent Nominees) for
election as directors of the Company at the 2009 Annual Meeting,
and cause the Company to use its reasonable best efforts to solicit
proxies in favor of the election of each of the 2009 Nominees
(including the New Independent Nominees); and
(3) cause
all proxies received by the Company to be voted in the manner
specified by such proxies and cause all proxies for which a vote is
not specified to be voted for the 2009 Nominees (including the New
Independent Nominees).
(e) The
Company agrees that the Company and the Board will cause the size
of the Board to be set at eleven directors (and will maintain the
size of the Board at eleven directors), and will cause the slate of
nominees standing for election, and recommended by the Board, at
the 2010 Annual Meeting to include the New Independent Nominees
(the eleven nominees for director, including the New Independent
Nominees, the “ 2010 Nominees ”), and
specifically the Company agrees to:
(1) nominate
and reflect in the 2010 Company Proxy (defined below) the
nomination of each of the 2010 Nominees (including the New
Independent Nominees) for election at the 2010 Annual Meeting as a
director of the Company with a term expiring at the 2011 annual
meeting of stockholders of the Company (the “2011 Annual
Meeting” );
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(2) recommend
and reflect in the 2010 Company Proxy the recommendation of each of
the 2010 Nominees (including the New Independent Nominees) for
election as directors of the Company at the 2010 Annual Meeting,
and cause the Company to use its reasonable best efforts to solicit
proxies in favor of the election of each of the New Independent
Nominees; and
(3) cause
all proxies received by the Company to be voted in the manner
specified by such proxies and cause all proxies for which a vote is
not specified to be voted for each of the 2010 Nominees (including
the New Independent Nominees).
(f) The
Company agrees that the Company and the Board will cause the size
of the Board to be set at eleven directors (and will maintain the
size of the Board at eleven directors), and will cause the slate of
nominees standing for election, and recommended by the Board, at
the 2011 Annual Meeting to include the New Independent Nominees
(the eleven nominees for director, including the New Independent
Nominees, the “2011 Nominees”), and specifically the
Company agrees to:
(1) nominate
and reflect in the 2011 Company Proxy (defined below) the
nomination of each of the 2011 Nominees (including the New
Independent Nominees) for election at the 2011 Annual Meeting as a
director of the Company with a term expiring at the 2012 annual
meeting of stockholders of the Company (the “2012 Annual
Meeting” );
(2) recommend
and reflect in the 2011 Company Proxy the recommendation of each of
the 2011 Nominees (including the New Independent Nominees) for
election as directors of the Company at the 2011 Annual Meeting,
and cause the Company to use its reasonable best efforts to solicit
proxies in favor of the election of each of the New Independent
Nominees; and
(3) cause
all proxies received by the Company to be voted in the manner
specified by such proxies and cause all proxies for which a vote is
not specified to be voted for each of the 2011 Nominees (including
the New Independent Nominees).
(g) The
Company agrees that the Company and the Board will not increase the
size of the Board to more than eleven directors at any time prior
to the 2012 Annual Meeting.
(h) Prior
to the execution of this Agreement, the Company (1) reviewed
the Notice, the questionnaires submitted by the TRT Nominees in
connection with the Notice, and the other information provided by
TRT and the TRT Nominees, (2) determined that the Notice
(together with the questionnaires submitted in connection with the
Notice), is sufficient for the purposes of the advance notice
provisions of the Second Amended and Restated By-Laws of the
Company (the “ Bylaws ”), (3) assuming the
completeness and accuracy of the information provided in the Notice
and in the questionnaires, determined that each of the New
Independent Nominees (x) is Independent, and is
“independent” in accordance with the requirements of
the Bylaws, the corporate governance guidelines of the Company and
all other applicable rules and policies of the Company and
(y) is otherwise qualified to serve as a member of the Board
and (4) acknowledges that, assuming the completeness and
accuracy of the information provided in the Notice and in the
questionnaires, and taking account of the facts and circumstances
known to the
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Company as of
the date hereof, the Company does not intend to seek the removal of
any TRT Nominee from the Board for failure to comply with Legal
Requirements. From the date hereof until the date of the TRT
Nominee’s resignation or removal from, or expiration of term
of service without re-election to, the Board, the TRT Nominee will
provide to the Nominating and Corporate Governance Committee upon
the Nominating and Corporate Governance Committee’s request
information that the Nominating and Corporate Governance Committee
reasonably and in good faith determines is necessary, based on
consultations with outside legal counsel, to determine whether the
TRT Nominee is Independent and is eligible to serve under
applicable Legal Requirements on an ongoing basis. Any information
requested from the Nominating and Corporate Governance Committee
will be consistent in all material respects with information
required from the Company’s other directors, and the basis
upon which the Company determines the Independence and the
eligibility under applicable Legal Requirements of each nominee of
TRT will be consistent in all material respects with that applied
to all other directors of the Board. In the event the Nominating
and Corporate Governance Committee determines reasonably and in
good faith that a sitting TRT Nominee is no longer Independent or
eligible to serve under applicable Legal Requirements, with such
determination based on standards or policies applicable to all
directors of the Company, the Nominating and Corporate Governance
Committee will inform the TRT Nominee of its determination and the
basis therefor in writing and in reasonable detail and will allow a
reasonable opportunity for the TRT Nominee to evaluate the
determination, including through meetings and discussions with the
Nominating and Corporate Governance Committee regarding the
circumstances of his independence and eligibility to serve under
applicable Legal Requirements, for a period not less than 20
business days. Following such discussions, if the Nominating and
Corporate Governance Committee, acting reasonably and in good
faith, has not reversed its determination that the TRT Nominee is
no longer Independent or eligible to serve under applicable Legal
Requirements as contemplated in this Section 1(h) , the
TRT Nominee will, if requested by the Nominating and Corporate
Governance Committee, promptly tender his resignation from the
Board, and the resulting vacancy will be filled pursuant to
Section 1(o) . Prior to the 2009 Annual Meeting, each
TRT Nominee will resign from his position, if any, as a director,
officer of employee of TRT or any Affiliate of TRT that competes
with the Company or its subsidiaries. Following his election to the
Board, until the date of his resignation or removal from, or
expiration of term of service without re-election to, the Board, no
TRT Nominee will serve as a director, officer or employee of TRT or
any Affiliate of TRT that competes with the Company or its
subsidiaries.
(i) At
least one of the New Independent Nominees will serve on each of the
standing committees of the Board (except to the extent, if any,
that none of the New Independent Nominees is eligible to serve on
such a committee under applicable Legal Requirements), including
the specific committee assignments set forth in this
Section 1(i) . The Company agrees that the Company and
the Board will take all actions necessary and appropriate to
(1) increase the size of the Executive Committee of the Board
(the “ Executive Committee ”) to five directors
(and maintain the size of the Executive Committee at five
directors) and effect the appointment of each of the individuals
identified on Schedule B (or their successors) to the
Executive Committee and (2) effect the appointment of each TRT
Nominee set forth on Schedule B (or his successor) to
the other committees of the Board indicated on
Schedule B , in each case: (x) if the applicable
TRT Nominee is elected to the Board at the 2009 Annual Meeting, at
the first meeting of the Board following such stockholder meeting,
which Board meeting will be held immediately following the
conclusion of the 2009 Annual Meeting, (y) if the applicable
TRT Nominee is
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elected to the
Board at the 2010 Annual Meeting, at the first meeting of the Board
following such stockholder meeting, which Board meeting will be
held immediately following the conclusion of the 2010 Annual
Meeting, and (z) if the applicable TRT Nominee is elected to
the Board at the 2011 Annual Meeting, at the first meeting of the
Board following such stockholder meeting, which Board meeting will
be held immediately following the conclusion of the 2011 Annual
Meeting. Each TRT Nominee will serve on the committees of the Board
indicated on Schedule B for the duration of such TRT
Nominee’s service on the Board. The Company hereby confirms
that it is not the Company’s intention to create any
additional committees of the Board other than a Conflicts Committee
(as described below), but in the event that a new committee other
than the Conflicts Committee is created at any time during which a
TRT Nominee is serving as a director, the Company agrees that the
Board will appoint at least one TRT Nominee to serve on such
committee; provided , that at least one TRT Nominee is
Independent and meets applicable Legal Requirements for eligibility
to serve on such committee, which determination will be made
reasonably and in good faith by the Nominating and Corporate
Governance Committee on a basis reasonably consistent with the
Company’s evaluation of other proposed members of such
committee. In addition, the Company hereby confirms that each
member of the Board who is Independent will be entitled to attend
each meeting of each committee of the Board as an observer, unless
any such committee is considering an issue as to which the
observing director would have a conflict of interest. The Company
agrees that the Company and the Board will promptly take all
actions necessary and appropriate to create a Conflicts Committee
of the Board (the “ Conflicts Committee ”),
which committee will be composed of three directors all of whom
will be Independent (and to maintain the size of the Conflicts
Committee at three directors) as contemplated on
Schedule B . Upon request by senior management of the
Company, the Conflicts Committee will consider whether a member of
the Board should not be provided with specified sensitive,
competitive confidential information concerning the Company.
Notwithstanding anything contained herein to the contrary, if the
Conflicts Committee determines by unanimous vote of the committee
members that a director should not be given such information, then
the Company will not provide such information to the director at
issue. TRT acknowledges and agrees that any such determination by
the Conflicts Committee with respect to any TRT Nominee will
constitute a reasonable restriction on the information to be given
to such TRT Nominee, and TRT will cause each TRT Nominee to comply
with the Conflicts Committee’s determination. The Company
will use reasonable efforts in connection with implementing
procedures such as the foregoing to endeavor to assist TRT in
complying with its obligations under Section 1(k)(3)
hereof.
(j) The
Company agrees that each of the TRT Nominees, upon election or
appointment to the Board, will serve as an integral member of the
Board and, subject to the terms and conditions set forth in this
Agreement, will be governed by the same protections and obligations
regarding confidentiality, conflicts of interest, fiduciary duties,
trading and disclosure policies, and other governance guidelines,
and will have the same rights and benefits, including with respect
to insurance coverage, indemnification rights, exculpation,
advancement of expenses, and compensation and fees, access to
personnel and information as are applicable to all Independent
directors of the Company; provided , that in the event of
any dispute between TRT and the Company arising out of, relating to
or in connection with this Agreement, Rowling will not be entitled
to indemnification or advancement or reimbursement of expenses
pursuant to the Company’s Restated Certificate of
Incorporation, the Bylaws or the Company’s
corporate
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governance
guidelines in respect of such dispute by virtue of Rowling’s
service as a director of the Company.
(k) Without
the prior written consent of the Company, TRT shall, and will cause
each TRT Nominee and Permitted Recipient to, refrain from, directly
or indirectly:
(1) from
the date hereof until the first anniversary of the later to occur
of (x) the Termination Date or (y) the date of the final
TRT Nominee’s resignation or removal from, or expiration of
term of service without re-election to, the Board, disclosing any
Confidential Information to any Representative of TRT or any of its
Affiliates or any other lodging or hospitality company with which
such TRT Nominee is affiliated other than a Permitted Recipient, or
otherwise using Confidential Information to the material detriment
of the Company and its subsidiaries;
(2) from
the date hereof until the later to occur of (x) the
Termination Date or (y) the date of the final TRT
Nominee’s resignation or removal from, or expiration of term
of service without re-election to, the Board, disclosing any
material nonpublic information of TRT or any of its Affiliates, or
any other lodging or hospitality company with which such TRT
Nominee is affiliated, to the Company or any of its Affiliates or
Representatives; and
(3) otherwise
engaging in any communications in any manner, or taking any
actions, that violate applicable Legal Requirements with respect to
antitrust, unfair competition, or restraint on trade.
(l) The
Company agrees that as promptly as practicable following the date
of this Agreement, the Company will take all steps reasonably
necessary to file with the SEC a proxy statement on
Schedule 14A for the 2009 Annual Meeting (the “ 2009
Company Proxy ”) that includes the TRT Nominees and the
other 2009 Nominees as nominees for election to the Board at the
2009 Annual Meeting. The Company agrees that its proxy statement on
Schedule 14A for the 2010 Annual Meeting (the “ 2010
Company Proxy ”) will include eleven nominees (including
the TRT Nominees) for election to the Board at the 2010 Annual
Meeting and that its proxy statement on Schedule 14A for the
2011 Annual Meeting (the “ 2011 Company Proxy ”)
will include eleven nominees (including the TRT Nominees) for
election to the Board at the 2011 Annual Meeting. The Company
agrees that each of the 2009 Company Proxy and all other
solicitation materials to be delivered to stockholders of the
Company in connection with the 2009 Annual Meeting, the 2010
Company Proxy and all other solicitation materials to be delivered
to stockholders of the Company in connection with the 2010 Annual
Meeting, and the 2011 Company Proxy and all other solicitation
materials to be delivered to stockholders of the Company in
connection with the 2011 Annual Meeting will be prepared in
accordance with, and in furtherance of, this Agreement. The Company
will provide TRT with copies of any proxy materials to be delivered
to stockholders of the Company in connection with the 2009 Annual
Meeting, the 2010 Annual Meeting, and the 2011 Annual Meeting at
least five business days, and will use its reasonable efforts to
provide other solicitation materials in connection with such
meetings, at least two business days, in advance of filing such
materials with the SEC or disseminating the same (whichever occurs
earlier) in order to permit TRT and its counsel a reasonable
opportunity to review and comment on such materials, which comments
of TRT and its counsel, to the extent the Company determines them
to be reasonable and appropriate, acting
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in good faith,
will be incorporated into such materials by the Company prior to
the filing of such materials with the SEC or the dissemination of
the same. TRT will provide, as promptly as reasonably practicable,
all information relating to the TRT Nominees (and other
information, if any) to the extent required under applicable law to
be included in the 2009 Company Proxy, the 2010 Company Proxy, and
the 2011 Company Proxy and in any other solicitation materials to
be delivered to stockholders of the Company in connection with the
2009 Annual Meeting, the 2010 Annual Meeting, and the 2011 Annual
Meeting. The 2009 Company Proxy, the 2010 Company Proxy, and the
2011 Company Proxy will each contain the same type of information
concerning the TRT Nominees as provided for other nominees for
election to the Board.
(m) Except
as expressly approved by TRT, the Company agrees that no matters
will be presented by the Board for a vote of stockholders of the
Company at the 2009 Annual Meeting other than the election of the
2009 Nominees (as specified herein) and the ratification of the
Company’s independent registered public accounting
firm.
(n) Notwithstanding
anything to the contrary herein, at any time between the date
hereof and the 2012 Annual Meeting, (1) if TRT and its
Affiliates Beneficially Own less than 10% of the outstanding shares
of Common Stock, but 5% or more of the outstanding shares of Common
Stock, TRT will be entitled to representation on the Board of one
TRT Nominee and (2) if TRT and its Affiliates Beneficially Own
less than 5% of the outstanding shares of Common Stock, TRT will
not be entitled to any representation on the Board. If TRT’s
Beneficial Ownership of Common Stock falls below the aforementioned
requisite thresholds, TRT will promptly notify the Company
thereafter and will promptly cause the appropriate number of TRT
Nominees to resign.
(o) If
(1) any TRT Nominee is not elected to the Board at the 2009
Annual Meeting or, after election to the Board, thereafter is
removed, resigns, or is otherwise unable to serve as a director of
the Company except pursuant to Section 1(n) ;
(2) any TRT Nominee is not elected to the Board at the 2010
Annual Meeting or, after election to the Board, thereafter is
removed, resigns, or is otherwise unable to serve as a director of
the Company except pursuant to Section 1(n) ; or
(3) any TRT Nominee is not elected to the Board at the 2011
Annual Meeting or, after election to the Board, thereafter is
removed, resigns, or is otherwise unable to serve as a director of
the Company except pursuant to Section 1(n) , then
(x) TRT will be entitled to appoint a non-voting advisory or
emeritus director of the Company, serving without compensation from
and without reimbursement of expenses by the Company, but otherwise
having the greatest access to personnel and information, and the
greatest right to observe meetings of the Board and meetings of
Board committees, in each case as permitted by applicable law but
in no event greater than the access to personnel and information
and the right to observe such meetings that would be afforded to
such individual if he or she were a director, unless the Company is
advised in writing by its counsel that the appointee’s
service as an advisory or emeritus director would violate
applicable law; provided , however, that only one such
non-voting advisory or emeritus director may serve at any time,
regardless of whether multiple TRT Nominees are not elected to the
Board or are thereafter removed, resigned or otherwise unable to
serve as a director of the Company; and (y) TRT will, in
addition, be entitled to select a new designee to serve as a
director, which designee (A) will qualify as Independent and
(B) will be chosen by TRT subject to a determination by the
Nominating and Corporate Governance Committee that such designee is
eligible to serve as a director under applicable Legal
Requirements, such determination to be
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made promptly,
reasonably and in good faith on a basis reasonably consistent with
the Company’s evaluation of all other directors, and the
Board will promptly appoint such designee to the Board (and to the
committees of the Board on which the TRT Nominee being replaced
served, provided that such designee meets the applicable
independence standards and applicable Legal Requirements for
eligibility to serve on such committee, as contemplated in this
Agreement) to serve until the next annual meeting of stockholders
of the Company after such appointment. Any such designee will be
deemed a TRT Nominee for all purposes under this Agreement and TRT
agrees to cause any advisory or emeritus director or designee
appointed pursuant to this Section 1(o) to comply with
all obligations of TRT and TRT Nominees under this Agreement. The
Company will take any action necessary or appropriate to facilitate
the discharge of its obligations under this Section 1(o) ,
including increasing the number of seats on the Board or amending
its Bylaws and its other governing documents.
(p) The
Company will invite TRT to participate in any process that may be
initiated by the Board during the term of this Agreement that seeks
proposals for the acquisition of all or substantially all of the
outstanding Voting Securities or assets of the Company; provided,
that (1) the Board may choose not to initiate any such process and,
if it does commence such a process it may discontinue the process
for any reason at any time, and (2) TRT will be required to
comply with the terms and conditions generally applicable to the
other participants in any sale process.
(q) Promptly
after the execution of this Agreement, the Company will issue a
press release in the form attached hereto as Schedule C
(the “ Press Release ”).
(r) Except
(1) as contemplated in Section 1(a)(1) ,
(2) to shorten the term of its effectiveness, or (3) as
approved by TRT, the Company will not amend the A&R Rights
Agreement in any manner without first submitting any such proposed
amendment to the holders of Common Stock for their approval, which
approval will be deemed to be obtained upon the affirmative vote of
the holders of a majority of the votes represented by the
outstanding Common Stock then entitled to vote generally for the
election of directors.
(s) The
Company covenants and agrees that, except to the extent required by
Legal Requirements, it will not amend its existing corporate
governance guidelines or adopt new corporate governance guidelines,
in each case with the purpose or intent of discriminating unfairly
against the TRT Nominees or the rights of TRT to representation on
the Board as contemplated by this Agreement.
Section 2.
Proxy Solicitation; Voting; Company Form 8-K; TRT
Schedule 13D; Proxy and Demand .
(a) Concurrently
with the execution of this Agreement, TRT will cease, and will
cause all TRT Controlled Parties immediately to cease, any and all
efforts with respect to the Proxy Solicitation, except as provided
in this Agreement.
(b) Subject
to the Company’s compliance with Sections 1(a)
, 1(d)(1) and (2) , and 1(i) , TRT hereby
withdraws the nominations of Robert B. Rowling, Michael J. Dickman,
David W. Johnson and Mark Langdale and the related Notice. The
Company acknowledges and
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agrees that,
should it fail to comply in full with Sections 1(a) ,
1(d)(1) and (2) , and 1(i) , then such
nominations of TRT will automatically, with no further action on
the part of TRT, be reinstated in full and without
prejudice.
(c) Subject
to the compliance in all material respects of the Company and the
Board with their obligations under this Agreement, from the date of
this Agreement until the Termination Date, TRT will not make, and
will cause each TRT Controlled Party not to make, any objection to
the election of each of the 2009 Nominees (including the TRT
Nominees) at the 2009 Annual Meeting, the election of each of the
2010 Nominees (including the TRT Nominees) at the 2010 Annual
Meeting, and the election of each of the 2011 Nominees (including
the TRT Nominees) at the 2011 Annual Meeting. TRT will, and will
cause each of its controlled Affiliates to:
(1) vote
all shares of Voting Securities that it is entitled to vote at the
2009 Annual Meeting in favor of the election of each of the 2009
Nominees (including the TRT Nominees) at the 2009 Annual
Meeting;
(2) vote
all shares of Voting Securities that it is entitled to vote at the
2010 Annual Meeting in favor of the election of each of the 2010
Nominees (including the TRT Nominees) at the 2010 Annual
Meeting;
(3) vote
all shares of Voting Securities that it is entitled to vote at the
2011 Annual Meeting in favor of the election of each of the 2011
Nominees (including the TRT Nominees) at the 2011 Annual
Meeting;
(4) vote
all shares of Voting Securities that it is entitled to vote at the
2009 Annual Meeting, the 2010 Annual Meeting and the 2011 Annual
Meeting against any stockholder nominations for director which are
not approved and recommended by the Board for election at such
meetings; and
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