Common use of Actions by the Investors Clause in Contracts

Actions by the Investors. Each of the Investors agrees that, during the Standstill Period, it shall not, and shall cause its Affiliates not to, unless specifically requested or authorized in writing by a resolution of the Board, directly or indirectly: (a) purchase or cause to be purchased or otherwise acquire or agree to acquire Economic Ownership of (i) any Common Stock, if in any such case, immediately after the taking of such action the Investors, together with their respective Affiliates, would, in the aggregate, Economically Own more than 9.9% of the then outstanding shares of Common Stock (such Economic Ownership in excess of 9.9% of the then outstanding shares of Common Stock, the “Excess Amount”) (the parties agree that (A) it shall not be a breach of this Section 2.3(a) if (1) the Investors, together with their Affiliates, inadvertently Economically Own the Excess Amount, if as soon as practicable the Investors, together with their Affiliates, divest themselves of Economic Ownership of sufficient shares so that they cease to Economically Own any Excess Amount or (2) the Investors, together with their Affiliates, Economically Own the Excess Amount solely as a result of share purchases, reverse share splits or other actions taken by the Company that, by reducing the number of shares outstanding (or, in the event the Company does not have a shareholder rights plan in effect or has a shareholder rights plan in effect that provides for an Economic Ownership threshold for purposes of qualifying as an “Acquiring Person” that is greater than 10%, issuing shares of Common Stock to the Director Designee pursuant to the Company’s director compensation plan), cause the Investors, together with their Affiliates, to Economically Own the Excess Amount, provided that the Economic Ownership of the Investors, together with their Affiliates, does not further increase thereafter, other than (x) solely as a result of further corporate actions taken by the Company or (y) an increase in Economic Ownership not covered by the immediately preceding clause (x) that does not exceed an additional 1% of Common Stock then outstanding, and (B) for purposes of any calculation under this Section 2.3(a), the number of shares of Common Stock then outstanding shall be the number most recently identified by the Company as outstanding in (1) any of the Company’s Annual Report on Form 10-K, Quarterly Report on Form 10-Q or definitive proxy statement on Schedule 14A, in each case as filed by the Company with the SEC or (2) a written notice by the Company to TFM), or (ii) any other securities issued by the Company; (b) form, join, or in any other way participate in, a “partnership, limited partnership, syndicate or other group” within the meaning of Section 13(d)(3) of the Exchange Act with respect to the Common Stock, or deposit any shares of Common Stock in a voting trust or similar arrangement, or subject any shares of Common Stock to any voting agreement or pooling arrangement, or grant any proxy, designation or consent with respect to any shares of Common Stock (other than to a designated representative of the Company pursuant to a proxy or consent solicitation on behalf of the Board), other than solely with other Investors or one or more Affiliates (other than portfolio or operating companies) of an Investor with respect to the shares of Common Stock acquired in compliance with paragraph (a) above or to the extent such a group may be deemed to result with the Company or any of its Affiliates as a result of this Agreement (it being understood that the holding by persons or entities of shares of Common Stock in accounts or through funds not managed or controlled by an Investor or any Affiliate of any Investor shall not give rise to a violation of this Section 2.3(b) solely by virtue of the fact that such persons or entities, in addition to holding such shares in such manner, are investors in funds and accounts managed by an Investor or any of its Affiliates and, in their capacity as such, are or may be deemed to be members of a “group” with the Investors within the meaning of Section 13(d)(3) of the Exchange Act with respect to the Common Stock; provided there does not exist as between such persons or entities, on the one hand, and the Investors or any of its Affiliates, on the other hand, any agreement, arrangement or understanding with respect to any action that would otherwise be prohibited by this Section 2.3); (c) solicit proxies, designations or written consents of shareholders, or conduct any binding or nonbinding referendum with respect to Common Stock, or make or in any way participate in any “solicitation” of any “proxy” within the meaning of Rule 14a-1 promulgated by the SEC under the Exchange Act (but without regard to the exclusion set forth in Rule 14a-1(l)(2)(iv) from the definition of “solicitation”) to vote any shares of Common Stock with respect to any matter, or become a participant in any contested solicitation for the election of directors with respect to the Company (as such terms are defined or used in the Exchange Act and the Rules promulgated thereunder), other than solicitations or acting as a participant in support of the voting obligations of the Investors and their Affiliates pursuant to Section 2.2; (d) seek to call, request the call of, or call a special meeting of the shareholders of the Company, or make or seek to make a shareholder proposal (whether pursuant to Rule 14a-8 under the Exchange Act or otherwise) at any meeting of the shareholders of the Company or in connection with any action by consent in lieu of a meeting, or make a request for a list of the Company’s shareholders, or seek election to the Board or seek to place a representative on the Board (other than as expressly set forth in Section 2.1 and Section 2.2), or seek the removal of any director from the Board, or otherwise acting alone or in concert with others, seek to control or influence the governance or policies of the Company; (e) propose, offer or participate in (i) any effort to acquire the Company or any of its subsidiaries or any material assets or operations of the Company or any of its subsidiaries, (ii) any effort to engage in a transaction or enter into any agreement that would result in Economic Ownership by any person or entity (whether or not an Investor) or group (as defined in Section 13(d)(3) of the Exchange Act) of more than 9.9% of the outstanding shares of Common Stock at any time or outstanding voting power of the Company at any time, (iii) any tender offer, exchange offer, merger, acquisition, share exchange or other business combination or “change in control” (as such term is used in Item 6 of Schedule 14A) transaction involving the Company or any of its subsidiaries, or (iv) any recapitalization, restructuring, liquidation, disposition, dissolution or other extraordinary transaction involving the Company, any of its subsidiaries or any material portion of their businesses; (f) publicly disclose, or cause or facilitate the public disclosure (including without limitation the filing of any document or report with the SEC or any other governmental agency or any disclosure to any journalist, member of the media or securities analyst) of, any intent, purpose, plan or proposal to obtain any waiver, consent under, or amendment of, any of the provisions of Section 2.2 or Section 2.3, or otherwise (i) seek in any manner to obtain any waiver, consent under, or amendment of, any provision of this Agreement or (ii) bring any action or otherwise act to contest the validity or enforceability of Section 2.2 or Section 2.3 or seek a release from the restrictions or obligations contained in Section 2.2 or Section 2.3 (it being understood, however, that the Board may adopt a resolution that modifies or waives Section 2.2 or Section 2.3); (g) make or issue or cause to be made or issued any public disclosure, announcement or statement (including without limitation the filing of any document or report with the SEC or any other governmental agency or any disclosure to any journalist, member of the media or securities analyst) (i) in support of any solicitation described in paragraph (c) above (other than solicitations on behalf of the Board), (ii) in support of any matter described in paragraph (d) above, (iii) concerning any potential matter described in paragraph (e) above or (iv) negatively or disparagingly commenting about the Company or any of the Company’s directors, officers, key employees, businesses, operations or strategic plans or strategic directions; or (h) enter into any discussions, negotiations, agreements or understandings with any person or entity with respect to the foregoing, or advise, assist, encourage, support or seek to persuade others to take any action with respect to any of the foregoing, or act in concert with others or as part of a group (within the meaning of Section 13(d)(3) of the Exchange Act) with respect to any of the foregoing. In the event the Company has announced or entered into a binding agreement providing for, or has recommended that its shareholders support, an Extraordinary Matter, the provisions of this Section 2.3 shall not operate to prevent the Investors from proposing or taking any actions in furtherance of, or consummating, a competing Extraordinary Matter, provided that all of the other provisions of this Agreement shall continue in full force and effect. Notwithstanding anything herein to the contrary, nothing in this Section 2.3 shall be deemed to in any way restrict or limit: (i) the Director Designee, in his capacity as a member of the Board, from confidentially expressing or advocating for his or her views to the Company, the Board, officers of the Company, other directors, or at Board meetings and by voting in his or her capacity as a director; (ii) the Investors or their Affiliates from (A) discussing any matter confidentially with the Company, the Board, officers of the Company or any directors of the Company solely to the extent that, without the prior written consent of the Company, such discussions (1) are not publicly disclosed, and would not reasonably be expected to require public disclosure, (including, without limitation, in any document or report filed with the SEC) by an Investor or any Affiliate of any Investor at or around the time such discussions take place, and (2) are not reasonably expected to require public disclosure (including, without limitation, in any document or report filed with the SEC) by the Company at or around the time such discussions take place, (B) voting their shares of Common Stock on any matter brought before the shareholders of the Company in any manner that they choose, other than as expressly provided in Section 2.2, (C) selling any shares of Common Stock, including in response to a Company or third-party tender offer or exchange offer, or (D) buying any shares of Common Stock other than as expressly provided in Section 2.3(a) (and Section 2.3(h) to the extent relating to Section 2.3(a)); or (iii) the Director Designee or the Investors from communicating, on a confidential basis, with attorneys, accountants or financial advisors (excluding any advisor who has taken, takes or is expected by the Investors to take, any action that if taken by the Investors would violate Section 2.3), or as otherwise required by law.

Actions by the Investors. Each of the Investors agrees that, during the Standstill Period, neither it shall not, and shall cause nor any of its Affiliates not towill, unless specifically requested or authorized in writing by a resolution of the Board, directly or indirectly: (a) purchase or cause to be purchased or otherwise acquire or agree to acquire Economic Ownership economic ownership of (i) any Common Stock, if in any such case, immediately after the taking of such action the Investors, together with their respective Affiliates, would, in the aggregate, Economically Own economically own more than 9.9% of the then outstanding shares of Common Stock (such Economic Ownership in excess of 9.9% of the then outstanding shares of Common Stock, the “Excess Amount”) (the parties agree that (A) it shall not be a breach of this Section 2.3(a) Agreement if (1) the Investors, together with their Affiliates, Investors inadvertently Economically Own the Excess Amount, economically own more than such 9.9% if as soon as practicable the Investors, together with their Affiliates, Investors divest themselves of Economic Ownership economic ownership of sufficient shares so that they cease to Economically Own any Excess Amount or economically own more than 9.9% of the then outstanding shares of Common Stock, (2B) it shall not be a breach of this Section 2.3(a) if the Investors, together with their Affiliates, Economically Own the Excess Amount ' economic ownership of shares exceeds such 9.9% limitation solely as a result of share purchases, reverse share splits or other actions taken by the Company that, that by reducing the number of shares outstanding (or, in the event the Company does not have a shareholder rights plan in effect or has a shareholder rights plan in effect that provides for an Economic Ownership threshold for purposes of qualifying as an “Acquiring Person” that is greater than 10%, issuing shares of Common Stock to the Director Designee pursuant to the Company’s director compensation plan), cause the Investors' economic ownership to exceed such 9.9% limitation, together with their Affiliates, to Economically Own the Excess Amount, provided that the Economic Ownership of so long as the Investors, together with their Affiliates, does ' economic ownership shall not further increase thereafter, other than thereafter (x) except solely as a result of further corporate actions taken by the Company or (y) an Company), unless and until the Investors' economic ownership before and after such subsequent increase in Economic Ownership not covered by the immediately preceding clause (x) that does not exceed an additional 1such 9.9% of Common Stock then outstandinglimitation, and (BC) for purposes of any calculation under this Section 2.3(a), the number of outstanding shares of Common Stock then outstanding shall be the number as of the latest date set forth in the Company's most recently identified by the Company as outstanding in (1) any of the Company’s Annual Report on Form 10-K, filed Quarterly Report on Form 10-Q or definitive proxy statement on Schedule 14AForm 10-K or, in each case as filed by the Company with the SEC or (2) a written notice by the Company to TFM)if more recently filed, Form 8-K, or (ii) any other securities issued by the Company; (b) form, join, join in or in any other way participate in, in a “"partnership, limited partnership, syndicate or other group” " within the meaning of Section 13(d)(3) of the Exchange Act with respect to the Common Stock, Stock or deposit any shares of Common Stock in a voting trust or similar arrangement, arrangement or subject any shares of Common Stock to any voting agreement or pooling arrangement, or grant any proxy, designation or consent proxy with respect to any shares of Common Stock (other than to a designated representative of the Company pursuant to a proxy or consent solicitation on behalf of the Board), other than solely with other Investors or one or more Affiliates (other than portfolio or operating companies) of an Investor with respect to the shares of Common Stock acquired in compliance with paragraph (a) above or to the extent such a group may be deemed to result with the Company or any of its Affiliates as a result of this Agreement (it being understood that the holding by persons or entities of shares of Common Stock in accounts or through funds not managed or controlled by an Investor or any Affiliate of any Investor shall not give rise to a violation of this Section 2.3(b) solely by virtue of the fact that such persons or entities, in addition to holding such shares in such manner, are investors in funds and accounts managed by an Investor or any of its Affiliates and, in their capacity as such, are or may be deemed to be members of a “group” with the Investors within the meaning of Section 13(d)(3) of the Exchange Act with respect to the Common Stock; provided there does not exist as between such persons or entities, on the one hand, and the Investors or any of its Affiliates, on the other hand, any agreement, arrangement or understanding with respect to any action that would otherwise be prohibited by this Section 2.3)Agreement; (c) solicit proxies, designations proxies or written consents of shareholders, or conduct any binding or nonbinding referendum with respect to Common Stock, or make make, or in any way participate in in, any “"solicitation” " of any “"proxy” " within the meaning of Rule 14a-1 promulgated by the SEC under the Exchange Act (but without regard to the exclusion set forth in Rule 14a-1(l)(2)(iv) from the definition of “"solicitation”") to vote any shares of Common Stock with respect to any matter, or become a participant in any contested solicitation for the election of directors with respect to the Company (as such terms are defined or used in the Exchange Act and the Rules promulgated thereunder), other than solicitations or acting as a participant in support of the voting obligations of the Investors and their Affiliates pursuant to Section 2.2; (d) seek to call, or to request the call of, or call a special meeting of the shareholders of the Company, or make or seek to make make, or make, a shareholder proposal (whether pursuant to Rule 14a-8 under the Exchange Act or otherwise) at any meeting of the shareholders of the Company or in connection with any action by consent in lieu of a meetingCompany, or make a request for a list of the Company’s 's shareholders, or seek election to the Board or Board, seek to place a representative on the Board (other than as expressly set forth in Section 2.1 and Section 2.2), or seek the removal of any director from the Board, or otherwise acting alone alone, or in concert with others, seek to control or influence the governance or policies of the Company; (e) proposeeffect or seek to effect (including, without limitation, by entering into any discussions, negotiations, agreements or understandings whether or not legally enforceable with any third person), offer or propose (whether publicly or otherwise) to effect, or cause or participate in, or in any way assist or facilitate any other person to effect or seek, offer or propose (whether publicly or otherwise) to effect or participate in, (i) any effort to acquire the Company acquisition of any securities (or any of its subsidiaries economic ownership thereof as defined herein), or any material assets or operations businesses, of the Company or any of its subsidiaries, except purchases of Common Stock pursuant to the limits specified in paragraph (a) above, (ii) any effort to engage in a transaction tender offer or enter into any agreement that would result in Economic Ownership by any person or entity (whether or not an Investor) or group (as defined in Section 13(d)(3) of the Exchange Act) of more than 9.9% of the outstanding shares of Common Stock at any time or outstanding voting power of the Company at any time, (iii) any tender offer, exchange offer, merger, acquisition, share exchange or other business combination or “change in control” (as such term is used in Item 6 of Schedule 14A) transaction involving the Company or any of its subsidiaries, or (iviii) any recapitalization, restructuring, liquidation, disposition, dissolution or other extraordinary transaction involving with respect to the Company, Company or any of its subsidiaries or any material portion of its or their businesses; (f) publicly disclose, or cause or facilitate the public disclosure (including without limitation the filing of any document or report with the SEC or any other governmental agency or any disclosure to any journalist, member of the media or securities analyst) of, of any intent, purpose, plan or proposal to obtain any waiver, or consent under, or any amendment of, any of the provisions of Section Sections 2.2 or Section 2.3, or otherwise (i) seek in any manner to obtain any waiver, or consent under, or any amendment of, any provision of this Agreement or (ii) bring any action or otherwise act to contest the validity or enforceability of Section 2.2 or Section 2.3 or seek a release from the restrictions or obligations contained in Section 2.2 or Section 2.3 (it being understood, however, that the Board may adopt a resolution that modifies or waives Section 2.2 or Section 2.3); (g) make or issue or cause to be made or issued any public disclosure, announcement or statement (including without limitation the filing of any document or report with the SEC or any other governmental agency or any disclosure to any journalist, member of the media or securities analyst) (i) in support of any solicitation described in paragraph (c) above (other than solicitations on behalf of the Board), (ii) in support of any matter described in paragraph (d) above, (iii) concerning any potential matter described in paragraph (e) above or (iv) negatively or disparagingly commenting about the Company or any of upon the Company’s directors, officersincluding the Company's corporate strategy, key employeesbusiness, businesses, operations corporate activities or strategic plans or strategic directionsmanagement; or (h) enter into any discussions, negotiations, agreements or understandings with any person or entity with respect to the foregoing, or advise, assist, encourage, support or seek to persuade others to take any action with respect to any of the foregoing, or act in concert with others or as part of a group (within the meaning of Section 13(d)(3) of the Exchange Act) with respect to any of the foregoing. In the event the Company has announced or entered into a binding agreement providing for, or has recommended that its shareholders support, an Extraordinary Matter, the provisions of this Section 2.3 shall not operate to prevent the Investors from proposing or taking any actions in furtherance of, of or consummating, consummating a competing Extraordinary Matter, provided that but all of the other provisions of this Agreement shall continue in full force and effect. Notwithstanding anything herein to the contrary, nothing in this Section 2.3 shall be deemed to in any way restrict or limit: limit (ia) the Director DesigneeDesignee from, in his capacity as a member of the Board, from confidentially expressing or advocating for his or her views to the Company, the Board, officers other members of the Company, other directors, Board or at during Board meetings and by voting in his or her capacity as a director; (iib) the Investors or their Affiliates from Investors' ability to (Ai) discussing discuss any matter confidentially with the Company, the Board, officers of the Company Board or any directors of the Company solely to the extent thatits members, without the prior written consent of the Company, such discussions or (1ii) are not publicly disclosed, and would not reasonably be expected to require public disclosure, (including, without limitation, in any document or report filed with the SEC) by an Investor or any Affiliate of any Investor at or around the time such discussions take place, and (2) are not reasonably expected to require public disclosure (including, without limitation, in any document or report filed with the SEC) by the Company at or around the time such discussions take place, (B) voting vote their shares of Common Stock on any matter brought before the shareholders of the Company in any manner that they choose, other than as expressly provided in Section 2.22.2 above, (Ciii) selling sell any shares of Common Stock, including in response including, without limitation, pursuant to a Company or third-party tender offer or exchange offer, or (Div) buying any shares of Common Stock other than as expressly provided in Section 2.3(a) (and Section 2.3(h) to the extent relating to Section 2.3(a)); or (iii) the Director Designee or the Investors from communicatingcommunicate, on a confidential basis, with attorneys, accountants or financial advisors advisers (excluding any such advisor who has taken, takes or is expected by the Investors to take, take any action that if taken by the Investors would violate this Section 2.3), or as otherwise required by law.