Standstill Agreement. For a period commencing with the date of this Agreement and ending on the earlier of (a) three (3) years following the Closing Date, (b) the date when the Investor exercises the Warrant in full, or (c) the occurrence of a Significant Event, other than a Permitted Purchase or with the consent of at least seventy-five percent (75%) of the members of the Board, each of the Investor and Founders agree not to, and to cause their respective Affiliates not to, (i) acquire, offer to acquire, or agree to acquire, by purchase or otherwise, any Securities (or beneficial ownership thereof), or rights or options to acquire any Securities (or beneficial ownership thereof), or any assets or businesses of the Company or its Subsidiaries constituting a significant portion of the consolidated assets of the Company and its Subsidiaries; (ii) make any public announcement with respect to, or submit a proposal for or offer of (with or without conditions), any merger, consolidation, tender or exchange offer, amalgamation, scheme of arrangement, recapitalization, reorganization, liquidation, dissolution, business combination, issuance or repurchase of Securities (including any tender offer) or other extraordinary transaction involving the Company, any of the assets of the Company or its Subsidiaries constituting a significant portion of the consolidated assets of the Company and its Subsidiaries; (iii) advise, encourage, support or influence any Person (except the Board) with respect to any of the foregoing; (iv) initiate, or in any way participate, directly or indirectly, in any “solicitation” of “proxies” to vote (as such terms are used in the rules of the SEC), or seek to advise or influence any Person or entity with respect to the voting of any Voting Securities of the Company, or form, join or in any way participate in a group for the purpose of the voting of any Voting Securities of the Company (other than as contemplated hereunder or under the Shareholders Agreement); or (v) publicly request the Company or Board amend or waive any provision of this paragraph (including this sentence), or contest the validity of this paragraph (including this sentence); provided, that nothing in the preceding clauses shall (A) restrict the Investor from making a private, non-public, proposal to the Board for any of such matters, (B) apply to any “beneficial ownership” of Securities acquired or deemed to be acquired by virtue of any of the arrangements expressly contemplated under the Transaction Documents, including any voting agreements contemplated under the Shareholders Agreement, or (C) in any way be deemed to require any Investor Director to take (or omitting to take) any actions in a manner he or she reasonably believes would be inconsistent with the fiduciary duties of the Directors under applicable Law (or obligate the Investor to cause any Investor Director to act or omit to act in a manner in which such Investor Director reasonably believes would be inconsistent with the fiduciary duties of the Directors under applicable Law). In addition to any other available remedies, the Investor, Founders or any of their Affiliates, successors or permitted assigns shall not have the right to vote or grant consents with respect to any Securities acquired in violation of this Section 6.4(i) and agrees to promptly sell any such Securities and shall be restrained from voting or granting consents with respect to all of its Securities at any annual or special meeting of the stockholders of the Company, however called, or in connection with any action by written consent in lieu of any such annual or special meeting of stockholders of the Company in violation of this Section 6.4(iv) and any decision, action or transaction by such Person made or effected in violation of this Section 6.4(iv) shall be null and void ab initio. Notwithstanding the foregoing, if following any Permitted Purchase made by the Founders, the Investor and its Affiliates and their respective transferees no longer hold, in the aggregate, the largest number of shares of Common Stock of the Company (assuming the conversion of Series B Preferred Stock into Common Stock, and with the Founders deemed as one single shareholder for the purpose of such determination), the Investor shall have the right to purchase such number of shares of Common Stock or other Securities so as to enable the Investor and its Affiliates and their respective transferees to become the holders, in the aggregate, of the largest number of shares of Common Stock of the Company (assuming the conversion of Series B Preferred Stock into Common Stock, and with the Founders deemed as one single shareholder for the purpose of such determination), any such purchases shall not be deemed to violate the provision of this Section 6.4.
Appears in 2 contracts
Samples: Investor Rights Agreement (Weichai America Corp.), Investor Rights Agreement (Power Solutions International, Inc.)
Standstill Agreement. For Each Restricted Group agrees, during the Standstill Period, unless specifically invited in writing by the Board of Directors of the Company, that such Restricted Group will not, either directly or indirectly through a period commencing with the date of this Agreement and ending on the earlier of representative or otherwise, (a) three effect or seek, offer or propose (3whether publicly or otherwise) years following the Closing Date, (b) the date when the Investor exercises the Warrant in fullto effect, or cause or participate in or in any way assist any other person to effect or seek, offer or propose (cwhether publicly or otherwise) the occurrence of a Significant Event, other than a Permitted Purchase to effect or with the consent of at least seventy-five percent (75%) of the members of the Board, each of the Investor and Founders agree not to, and to cause their respective Affiliates not to, participate in (i) acquire, offer to acquire, or agree to acquire, by purchase or otherwise, any Securities acquisition of any securities (or beneficial ownership thereof), or rights or options to acquire any Securities (or beneficial ownership thereof), or any assets or businesses of the Company or its Subsidiaries constituting a significant portion of the consolidated assets of the Company and its Subsidiaries; (ii) make any public announcement with respect to, or submit a proposal for or offer of (with or without conditions), any merger, consolidation, tender or exchange offer, amalgamation, scheme of arrangement, recapitalization, reorganization, liquidation, dissolution, business combination, issuance or repurchase of Securities (including any tender offer) or other extraordinary transaction involving the Company, any of the assets of the Company or any of its Subsidiaries constituting a significant portion of the consolidated assets of subsidiaries; (ii) any tender or exchange offer or merger or other business combination involving the Company and or any of its Subsidiariessubsidiaries; (iii) adviseany recapitalization, encouragerestructuring, support liquidation, dissolution or influence any Person (except the Board) other extraordinary transaction with respect to the Company or any of the foregoingits subsidiaries; or (iv) initiate, or in any way participate, directly or indirectly, in any “"solicitation” " of “"proxies” to vote " (as such terms are used in the proxy rules of the SEC), Exchange Act) or seek consents to advise or influence any Person or entity with respect to the voting of vote any Voting Securities of the Company, or (b) form, join or in any way participate in a group for "group" (as defined under the purpose Exchange Act), (c) except by reason of an Affiliate serving on the Board of Directors of the voting Company, otherwise act, alone or in concert with others, to seek to control or influence the management, Board of Directors or policies of the Company, (d) take any Voting Securities action which might force the Company to make a public announcement regarding any of the types of matters set forth in (a) above, or (e) enter into any discussions or arrangements with any third party with respect to any of the foregoing. Each Restricted Group also agrees during any such period not to request the Company (other than as contemplated hereunder or under the Shareholders Agreementits directors, officers, employees or agents); , directly or (v) publicly request the Company or Board indirectly, to amend or waive any provision of this paragraph (including this sentence), or contest the validity of this paragraph (including this sentence); provided, however, that nothing in the preceding clauses shall (A) restrict the Investor this Agreement will prohibit a Restricted Group or member thereof from acquiring Finance Securities or making a private, non-public, confidential proposal to the Board for any of such matters, (B) apply to any “beneficial ownership” of Securities acquired or deemed to be acquired by virtue of any of the arrangements expressly contemplated under the Transaction Documents, including any voting agreements contemplated under the Shareholders Agreement, or (C) in any way be deemed to require any Investor Director to take (or omitting to take) any actions in a manner he or she reasonably believes would be inconsistent with the fiduciary duties of the Directors under applicable Law (or obligate the Investor to cause any Investor Director to act or omit to act in a manner in which such Investor Director reasonably believes would be inconsistent with the fiduciary duties of the Directors under applicable Law). In addition to any other available remedies, the Investor, Founders or any of their Affiliates, successors or permitted assigns shall not have the right to vote or grant consents with respect to any Securities acquired in violation of this Section 6.4(i) and agrees to promptly sell any such Securities and shall be restrained from voting or granting consents with respect to all of its Securities at any annual or special meeting of the stockholders foregoing provided that the terms thereof are conditioned upon the maintenance of such confidentiality by the Company, however called, or in connection with any action by written consent in lieu of any such annual or special meeting of stockholders of the Company in violation of this Section 6.4(iv) and any decision, action or transaction by such Person made or effected in violation of this Section 6.4(iv) shall be null and void ab initio. Notwithstanding the foregoing, if following any Permitted Purchase made by the Founders, the Investor and its Affiliates and their respective transferees no longer hold, in the aggregate, the largest number of shares of Common Stock of the Company (assuming the conversion of Series B Preferred Stock into Common Stock, and with the Founders deemed as one single shareholder for the purpose of such determination), the Investor shall have the right to purchase such number of shares of Common Stock or other Securities so as to enable the Investor and its Affiliates and their respective transferees to become the holders, in the aggregate, of the largest number of shares of Common Stock of the Company (assuming the conversion of Series B Preferred Stock into Common Stock, and with the Founders deemed as one single shareholder for the purpose of such determination), any such purchases shall not be deemed to violate the provision of this Section 6.4.
Appears in 2 contracts
Samples: Shareholders' Agreement (Headhunter Net Inc), Credit Agreement (Headhunter Net Inc)
Standstill Agreement. For a period commencing with Except as expressly provided in this Agreement or as otherwise requested or consented to by the Company or required by Applicable Law, the Investor covenants and agrees that, from and after the date of this Agreement and ending on hereof until the earlier of (a) three (3) years following the Closing Standstill Termination Date, (b) the date when neither the Investor exercises nor any member of the Warrant in fullInvestor Group shall, singly or (c) the occurrence as part of a Significant Eventpartnership, limited partnership, syndicate or other than a Permitted Purchase or with the consent of at least seventy-five percent group (75%as those terms are used in Section 13(d)(3) of the members of the BoardExchange Act), each of the Investor and Founders agree not to, and to cause their respective Affiliates not to, directly or indirectly:
(ia) acquire, offer to acquire, or agree to acquire, by purchase purchase, gift or otherwise, directly or indirectly, the beneficial ownership of any Securities additional equity securities of the Company (or beneficial ownership thereof)any warrants, options, or other rights to purchase or options to acquire any Securities (or beneficial ownership thereof)acquire, or any assets securities convertible into, or businesses exchangeable for, any equity securities of the Company Company) that has or its Subsidiaries constituting a significant portion could have the effect of increasing the Beneficial Ownership of the consolidated assets Investor Group on a percentage basis in the outstanding Shares above the percentage interest held by the Investor Group as of the Company and its Subsidiaries; Closing (ii) make other than any public announcement with respect to, or submit a proposal for or offer Shares acquired by the Investor pursuant to any provision of (with or without conditionsthe Merger Agreement), any mergerexcept pursuant to a stock split, consolidationstock dividend, tender or exchange offer, amalgamation, scheme of arrangementrights offering, recapitalization, reorganization, liquidation, dissolution, business combination, reclassification or similar transaction or grant or issuance or repurchase of Securities (including any tender offer) or other extraordinary transaction involving the Company, any of the assets of the Company or its Subsidiaries constituting a significant portion of the consolidated assets of the Company and its Subsidiaries; (iii) advise, encourage, support or influence any Person (except approved by the Board;
(b) with respect to any of the foregoing; (iv) initiatemake, or in any way participate, directly or indirectly, in any “solicitation” of “proxies” to vote (as such terms are used defined in Rule 14a-1 under the rules of the SECExchange Act), solicit any consent or communicate with or seek to advise or influence any Person or entity with respect to the voting of any Voting Securities securities of the Company or become a “participant” (as such term is defined in Schedule 14A under the Exchange Act) in any election contest with respect to the Company, or ;
(c) form, join join, encourage or in any way participate in a group for the purpose formation of, any “person” or “group” within the meaning of Section 13(d)(3) of the voting of any Voting Securities of the Company Exchange Act (other than as contemplated hereunder or under the Shareholders Agreement); or (v) publicly request the Company or Board amend or waive any provision of this paragraph (including this sentence), or contest the validity of this paragraph (including this sentence); provided, that nothing in the preceding clauses shall (A) restrict the Investor from making a private, non-public, proposal to the Board for any of such matters, (BGroup) apply to any “beneficial ownership” of Securities acquired or deemed to be acquired by virtue of any of the arrangements expressly contemplated under the Transaction Documents, including any voting agreements contemplated under the Shareholders Agreement, or (C) in any way be deemed to require any Investor Director to take (or omitting to take) any actions in a manner he or she reasonably believes would be inconsistent with the fiduciary duties of the Directors under applicable Law (or obligate the Investor to cause any Investor Director to act or omit to act in a manner in which such Investor Director reasonably believes would be inconsistent with the fiduciary duties of the Directors under applicable Law). In addition to any other available remedies, the Investor, Founders or any of their Affiliates, successors or permitted assigns shall not have the right to vote or grant consents with respect to any Securities acquired in violation Shares;
(d) initiate, propose or otherwise solicit stockholders of this Section 6.4(i) and agrees to promptly sell the Company for the approval of any such Securities and shall be restrained from voting or granting consents stockholder proposal with respect to all the Company as described in Rule 14a-8 under the Exchange Act or otherwise or induce or attempt to induce any other person to initiate any stockholder proposal;
(e) seek election to or seek to place a representative on the Board (other than in accordance with the provisions of its Securities at this Agreement) or seek removal of any annual or special member of the Board;
(f) seek to have called any meeting of the stockholders of the Company;
(g) make any public announcement or proposal whatsoever with respect to, however called, or in connection with any action by written consent in lieu form of any such annual or special meeting of stockholders of the Company in violation of this Section 6.4(iv) and any decision, action or business combination transaction by such Person made or effected in violation of this Section 6.4(iv) shall be null and void ab initio. Notwithstanding the foregoing, if following any Permitted Purchase made by the Founders, the Investor and its Affiliates and their respective transferees no longer hold, in the aggregate, the largest number of shares of Common Stock of involving the Company (assuming other than the conversion of Series B Preferred Stock into Common Stock, and with transactions contemplated by the Founders deemed as one single shareholder for the purpose of such determinationMerger Agreement), including a merger, exchange offer, or sale or liquidation of the Company’s assets, or any restructuring, recapitalization or similar transaction with respect to the Company;
(h) seek publicly to have the Company waive, amend or modify any of the provisions contained in this Section 5;
(i) publicly disclose or announce any intention, plan or arrangement to do any of the foregoing; or
(j) advise, assist, instigate or knowingly encourage any third party to do any of the foregoing; provided, however, that this Section 5 shall not prohibit or restrict (i) any action taken by the Investor shall have Designees as members of the right to purchase Board in such number of shares of Common Stock capacity, or other Securities so as to enable (ii) the exercise by Investor and the Investor and its Affiliates and Group of their respective transferees voting rights with regard to become Shares to the holders, in the aggregate, of the largest number of shares of Common Stock of the Company (assuming the conversion of Series B Preferred Stock into Common Stock, and with the Founders deemed as one single shareholder for the purpose of such determination), any such purchases shall not be deemed to violate the provision of this extent contemplated by Section 6.44.
Appears in 2 contracts
Samples: Stockholder Agreement (Willbros Group, Inc.\NEW\), Stockholder Agreement (Willbros Group, Inc.\NEW\)
Standstill Agreement. For a period commencing with The Purchaser hereby agrees that from and after the date hereof until the earlier of the date one year after the date of (i) closing of a Qualified Public Offering (as defined in Section 5.01 of this Agreement and ending on Agreement) or (ii) registration of a class of the earlier Company's securities under the 1934 Act, unless such shall have been specifically invited in writing by the Company, neither Purchaser nor any of its affiliates (as such term is defined under the 1934 Xxx) xx agents will in any manner, directly or indirectly, (a) three effect or seek, offer or propose (3whether publicly or otherwise) years following the Closing Date, (b) the date when the Investor exercises the Warrant in fullto effect, or cause or participate in or in any way assist any other Person to effect or seek, offer or propose (cwhether publicly or otherwise) the occurrence of a Significant Event, other than a Permitted Purchase to effect or with the consent of at least seventy-five percent (75%) of the members of the Board, each of the Investor and Founders agree not to, and to cause their respective Affiliates not toparticipate in, (i) acquire, offer to acquire, or agree to acquire, by purchase or otherwise, any Securities acquisition of any securities (or beneficial ownership thereof)) or assets of the Company, or rights or options to except that during the one-year period from and after a Qualified Public Offering, the Purchaser may acquire any Securities (or beneficial ownership thereof), or any assets or businesses capital stock of the Company or provided that after any such acquisition, the Purchaser and its Subsidiaries constituting a significant portion affiliates shall beneficially own no more than 10% of each class of the consolidated assets of the Company and its SubsidiariesCompany's voting securities; (ii) make any public announcement with respect to, or submit a proposal for or offer of (with or without conditions), any merger, consolidation, tender or exchange offer, amalgamation, scheme of arrangement, merger or other business combination involving the Company; (iii) any recapitalization, reorganizationrestructuring, liquidation, dissolution, business combination, issuance or repurchase of Securities (including any tender offer) dissolution or other extraordinary transaction involving the Company, any of the assets of the Company or its Subsidiaries constituting a significant portion of the consolidated assets of the Company and its Subsidiaries; (iii) advise, encourage, support or influence any Person (except the Board) with respect to any of the foregoingCompany; or (iv) initiate, or in any way participate, directly or indirectly, in any “"solicitation” " of “"proxies” to vote " (as such terms are used in the proxy rules of the SEC), Commission) or seek consents to advise or influence vote any Person or entity with respect to the voting of any Voting Securities securities of the Company; (b) otherwise act, or form, join alone or in any way participate in a group for the purpose concert with others, to seek control of the Company's Board of Directors; or (c) take any action which might require the Company to make a public announcement regarding any of the types of matters set forth in (a) above. Notwithstanding the above in this Section 1.05(b), if (i) following the Company's initial public offering a bona fide tender offer that seeks to acquire more than 50% of the outstanding voting of any Voting Securities securities of the Company (other than as contemplated hereunder or under is commenced by a third party unaffiliated with the Shareholders Agreement); or (v) publicly request the Company or Board amend or waive any provision of this paragraph (including this sentence), or contest the validity of this paragraph (including this sentence); provided, that nothing in the preceding clauses shall (A) restrict the Investor from making a private, non-public, proposal to the Board for any of such matters, (B) apply to any “beneficial ownership” of Securities acquired or deemed to be acquired by virtue of any of the arrangements expressly contemplated under the Transaction Documents, including any voting agreements contemplated under the Shareholders AgreementPurchaser, or (Cii) in prior to the Company's initial public offering any way be deemed to require any Investor Director to take individual, entity or group (within the meaning of Section 13(d)(3) or omitting to take14(d)(2) any actions in a manner he or she reasonably believes would be inconsistent with the fiduciary duties of the Directors under applicable Law (or obligate 1934 Xxx) xxher than the Investor to cause any Investor Director to act or omit to act in a manner in which such Investor Director reasonably believes would be inconsistent with the fiduciary duties of the Directors under applicable Law). In addition to any other available remedies, the Investor, Founders or any of their Affiliates, successors or permitted assigns shall not have the right to vote or grant consents with respect to any Securities acquired in violation of this Section 6.4(i) Purchaser and agrees to promptly sell any such Securities and shall be restrained from voting or granting consents with respect to all of its Securities at any annual or special meeting of the stockholders affiliates acquires more than 50% of the Company's outstanding voting securities, however calledthen any above restriction contained in this Section 1.05(b) imposed on the Purchaser will immediately terminate, and the Purchaser shall be free to acquire or in connection with offer to acquire any action by or all outstanding shares of the Company. Prior to the Company's initial public offering, the Company will provide written consent in lieu notice to the Purchaser immediately after the Company learns of any such annual individual, entity or special meeting group acquiring more than 25% of stockholders the Company's outstanding voting securities. Notwithstanding anything to the contrary in this Section, the Purchaser shall be entitled to acquire securities of the Company in violation of this pursuant to Section 6.4(iv) and any decision, action or transaction by such Person made or effected in violation of this Section 6.4(iv) shall be null and void ab initio. Notwithstanding the foregoing, if following any Permitted Purchase made by the Founders, the Investor and its Affiliates and their respective transferees no longer hold, in the aggregate, the largest number of shares of Common Stock 4.1 of the Company Amended and Restated Stockholders' Agreement (assuming the conversion of Series B Preferred Stock into Common Stock, and with the Founders deemed as one single shareholder for the purpose of such determinationdefined in Section 2.03(b) below), the Investor shall have the right to purchase such number of shares of Common Stock or other Securities so as to enable the Investor and its Affiliates and their respective transferees to become the holders, in the aggregate, of the largest number of shares of Common Stock of the Company (assuming the conversion of Series B Preferred Stock into Common Stock, and with the Founders deemed as one single shareholder for the purpose of such determination), any such purchases shall not be deemed to violate the provision of this Section 6.4.
Appears in 2 contracts
Samples: Series D Convertible Preferred Stock Purchase Agreement (Akamai Technologies Inc), Series E Convertible Preferred Stock Purchase Agreement (Akamai Technologies Inc)
Standstill Agreement. For Each Requesting Party agrees that, except as may be approved by the FVE Board in its sole discretion, for a period commencing with on the date of this Agreement hereof and ending on the earlier of date that is ten (10) years after the date hereof (such period, the “Standstill Term”), such Requesting Party will not, and will cause its Controlled Affiliates, Permitted Transferees and Representatives to not, in any manner, directly or indirectly, either alone or in concert with one or more other Person(s):
(a) three effect or seek, offer or propose (3whether publicly or otherwise) years following the Closing Dateto effect, cause, participate in or in any way advise, assist or encourage any other Person to effect or seek, offer or propose (whether publicly or otherwise) to effect, cause or participate in, (bA) the date when the Investor exercises the Warrant in full, or (c) the occurrence of a Significant Event, other than a Permitted Purchase or with the consent of at least seventy-five percent (75%) of the members of the Board, each of the Investor and Founders agree not to, and to cause their respective Affiliates not to, (i) acquire, offer to acquire, or agree to acquire, by purchase or otherwise, any Securities (or beneficial ownership thereof), or rights or options to acquire any Securities (or beneficial ownership thereof), or any assets or businesses of the Company or its Subsidiaries constituting a significant portion of the consolidated assets of the Company and its Subsidiaries; (ii) make any public announcement with respect to, or submit a proposal for or offer of (with or without conditions), any merger, consolidation, tender or exchange offer, amalgamation, scheme of arrangement, recapitalization, reorganization, liquidation, dissolution, business combination, issuance or repurchase of Securities (including any tender offer) merger or other business combination or extraordinary transaction involving the Companyinvolving, or any sale of all or a substantial portion of the assets of of, the Company or any of its Subsidiaries constituting a significant portion of subsidiaries, other than the consolidated assets of the Company and its SubsidiariesProposed Acquisition; (iiiB) adviseany recapitalization, encouragerestructuring, support liquidation or influence any Person (except the Board) dissolution with respect to the Company or any of the foregoingits subsidiaries; or (ivC) initiate, or in any way participate, directly or indirectly, in any “solicitation” of “proxies” to vote (as such terms are used defined in Rule 14a-1 of Regulation 14A under the rules 0000 Xxx) or consents to vote any Common Shares or other voting securities of the SEC), Company;
(b) deposit any Common Shares or seek other voting securities of the Company in a voting trust or subject Common Shares or other voting securities of the Company to advise a voting agreement or influence any Person other agreement or entity arrangement with respect to the voting of any Voting Securities of the Companysuch shares or securities, or form, join or in any way participate in a group for the purpose of the voting of any Voting Securities of the Company (other than as contemplated hereunder or under the Shareholders with other Requesting Parties of this Agreement); or ;
(vc) publicly request that the Company or Board amend or waive any provision of this paragraph Agreement;
(d) take any action (including this sentence), any public announcement or contest communication with or to the validity of this paragraph (including this sentence); provided, that nothing Company) which would reasonably be expected to result in the preceding clauses shall (A) restrict the Investor from Company making a private, non-public, proposal to the Board for any of such matters, (B) apply to any “beneficial ownership” of Securities acquired or deemed to be acquired by virtue of public announcement regarding any of the types of matters set forth in this Section 5.1; or
(e) encourage, assist or enter into any discussions or arrangements expressly contemplated under the Transaction Documents, including with any voting agreements contemplated under the Shareholders Agreement, or (C) in any way be deemed to require any Investor Director to take (or omitting to take) any actions in a manner he or she reasonably believes would be inconsistent with the fiduciary duties of the Directors under applicable Law (or obligate the Investor to cause any Investor Director to act or omit to act in a manner in which such Investor Director reasonably believes would be inconsistent with the fiduciary duties of the Directors under applicable Law). In addition to any other available remedies, the Investor, Founders or any of their Affiliates, successors or permitted assigns shall not have the right to vote or grant consents third party with respect to any Securities acquired of the foregoing. Nothing in violation Section 5.1 of this Section 6.4(i) and agrees to promptly sell any such Securities and Agreement shall be restrained from voting deemed to (1) restrict or granting consents limit the Requesting Parties’ ability to discuss any matter confidentially with respect to all of its Securities at any annual the Chief Executive Officer or special meeting of the stockholders of the Company, however called, or in connection with any action by written consent in lieu of any such annual or special meeting of stockholders Chief Financial Officer of the Company or with the FVE Board or any member of the FVE Board or to communicate, on a confidential basis, with their own Representatives; (2) restrict any director, officer, or manager of any Requesting Party or any of its Controlled Affiliates (including any Requesting Party acting in violation such capacity) from acting in his, her or its capacity as a director, trustee, officer or manager of any Public Company (including the Company) in accordance with his or her fiduciary, statutory, contractual or similar duties to such Entity or the stockholders thereof; or (3) restrict any Public Company that is not Controlled by a Requesting Party. For the avoidance of doubt, nothing in this Section 6.4(iv) and any decision, action or transaction by such Person made or effected in violation of this Section 6.4(iv) Agreement shall be null and void ab initio. Notwithstanding the foregoingconstrued to prevent any Person who is a director, if following any Permitted Purchase made by the Foundersofficer, the Investor and its Affiliates and their respective transferees no longer hold, in the aggregate, the largest number of shares of Common Stock manager or employee of the Company (assuming the conversion of Series B Preferred Stock into Common Stockfrom performing any duties in such capacity, and including, without limitation, discussing, considering or voting on any matter, interacting with the Founders deemed as one single shareholder for the purpose of such determination), the Investor shall have the right to purchase such number of shares of Common Stock or other Securities so as to enable the Investor and its Affiliates and their respective transferees to become the holders, in the aggregate, of the largest number of shares of Common Stock Board and/or management of the Company (assuming or from participating in any activity of the conversion of Series B Preferred Stock into Common Stock, and with Board and/or the Founders deemed as one single shareholder for the purpose of such determination), any such purchases shall not be deemed to violate the provision of this Section 6.4Company.
Appears in 2 contracts
Samples: Consent, Standstill, Registration Rights and Lock Up Agreement (Five Star Quality Care, Inc.), Consent Agreement (Senior Housing Properties Trust)
Standstill Agreement. For a period commencing with the date of this Agreement and ending on the earlier of (a) three (3) years following the Closing Date, (bi) the date when two (2) years after the Investor exercises the Warrant in full, date of this Agreement or (cii) the occurrence of a Significant EventTermination Date (as defined below) (the “Standstill Period”), other than a Permitted Purchase or with Investor shall not, without the prior written consent of at least seventy-five percent the Company or the Company’s Board of Directors: (75%) of the members of the Board, each of the Investor and Founders agree not to, and to cause their respective Affiliates not to, (ia) acquire, offer to acquire, or agree to acquire, directly or indirectly, by purchase or otherwise, any Securities (voting securities or beneficial ownership thereof), direct or indirect rights or options to acquire any Securities voting securities (or beneficial ownership thereof), or any assets or businesses A) during such time that Investor beneficially owns (for purposes of Section 13(d) of the Company Exchange Act) five percent (5%) or its Subsidiaries constituting a significant portion more of the consolidated assets voting power of the Company and its Subsidiaries; (ii) make any public announcement with respect to, or submit a proposal for or offer of (with or without conditions), any merger, consolidation, tender or exchange offer, amalgamation, scheme of arrangement, recapitalization, reorganization, liquidation, dissolution, business combination, issuance or repurchase of Securities (including any tender offer) or other extraordinary transaction involving the Company, any or (B) which when added to the Shares then owned by Investor and its subsidiaries, would result in Investor and its subsidiaries beneficially owning (for purposes of Section 13(d) of the assets Exchange Act) of more than five percent (5%) of the Company or its Subsidiaries constituting a significant portion voting power of the consolidated assets of the Company and its SubsidiariesCompany; (iiib) advise, encourage, support or influence any Person (except the Board) with respect to any of the foregoing; (iv) initiatemake, or in any way participate, directly or indirectly, in any “solicitation” of “proxies” to vote (as such terms are used in the rules of the SECExchange Act), or seek to advise or influence any Person person or entity with respect to the voting of any Voting Securities voting securities of the Company; (c) make any public announcement with respect to, or submit a proposal for, or offer of (with or without conditions) any merger, business combination, recapitalization, restructuring or other extraordinary transaction involving the Company or any of its securities or material assets; (d) form, join or in any way participate in a group for the purpose “group” as defined in Section 13(d)(3) of the voting Exchange Act in connection with any of the foregoing; (e) otherwise act or seek to control or influence the management, Board of Directors or policies of the Company; (f) take any action that could reasonably be expected to require the Company to make a public announcement regarding the possibility of any Voting Securities of the Company events described in clauses (other than as contemplated hereunder or under the Shareholders Agreement)a) through (e) above; or (vg) publicly request the Company Company, directly or Board indirectly, to amend or waive any provision of this paragraph (including this sentence), or contest paragraph. For the validity purposes of this paragraph paragraph, the “Termination Date” shall mean the earliest of (including this sentence); provided, that nothing in i) the preceding clauses shall date on which the Company (A) restrict the Investor from making enters into a privatedefinitive agreement with an unaffiliated third party or parties to merge, non-publicconsolidate or otherwise combine, proposal to the Board for any of with such matters, (B) apply to any “beneficial ownership” of Securities acquired third party or deemed to be acquired by virtue of any of the arrangements expressly contemplated under the Transaction Documents, including any voting agreements contemplated under the Shareholders Agreement, or (C) in any way be deemed to require any Investor Director to take (or omitting to take) any actions parties in a manner he or she reasonably believes would be inconsistent with transaction where the fiduciary duties of the Directors under applicable Law (or obligate the Investor to cause any Investor Director to act or omit to act in a manner in which such Investor Director reasonably believes would be inconsistent with the fiduciary duties of the Directors under applicable Law). In addition to any other available remedies, the Investor, Founders or any of their Affiliates, successors or permitted assigns shall not have the right to vote or grant consents with respect to any Securities acquired in violation of this Section 6.4(i) and agrees to promptly sell any such Securities and shall be restrained from voting or granting consents with respect to all of its Securities at any annual or special meeting of the stockholders holders of the Company, however called, ’s outstanding shares immediately prior to such merger or in connection with any action by written consent in lieu of any such annual or special meeting of stockholders of the Company in violation of this Section 6.4(iv) and any decision, action or transaction by such Person made or effected in violation of this Section 6.4(iv) shall be null and void ab initio. Notwithstanding the foregoing, if following any Permitted Purchase made by the Founders, the Investor and its Affiliates and their respective transferees no longer consolidation would hold, in the aggregate, securities possessing less than fifty percent (50%) of the largest number total combined voting power of shares the combined or surviving entity immediately after such merger or consolidation, or to sell substantially all of Common Stock the Company’s business or assets or securities representing a majority of the then outstanding voting power of the Company’s securities, or (B) makes a public announcement that it is negotiating a transaction with an unaffiliated third party or parties covered by the foregoing clause (A), or (ii) the date a third party or group (as defined above) (X) acquires beneficial ownership of voting securities (including those convertible or exchangeable into such voting securities) of the Company representing fifteen percent (assuming the conversion of Series B Preferred Stock into Common Stock, and with the Founders deemed as one single shareholder for the purpose of such determination), the Investor shall have the right to purchase such number of shares of Common Stock 15%) or other Securities so as to enable the Investor and its Affiliates and their respective transferees to become the holders, in the aggregate, more of the largest number then outstanding voting securities of shares of Common Stock the Company; or (Y) announces or commences a tender or exchange offer to acquire voting securities of the Company which, if successful, would result in such person or group owning, when combined with any other voting securities of the Company owned by such person or group, fifteen percent (assuming 15%) or more of the conversion then outstanding voting securities of Series B Preferred Stock into Common Stock, and with the Founders deemed as one single shareholder for the purpose of such determination), any such purchases shall not be deemed to violate the provision of this Section 6.4Company.
Appears in 2 contracts
Samples: Registration Rights Agreement (Sonus Pharmaceuticals Inc), Registration Rights Agreement (Schering Berlin Venture Corp)
Standstill Agreement. For a period commencing with The Investor agrees that, without the date prior written approval of this Agreement and ending on the earlier Company, neither the Investor nor any of its Affiliates will, directly or indirectly:
(a) three purchase, offer or agree to purchase, or otherwise acquire beneficial ownership of, any Equity Securities (3as hereinafter defined) years following the Closing Dateif, (b) the date when upon consummation of such purchase or other acquisition, the Investor exercises or its Affiliates would have beneficial ownership of 20.0% or more of the Warrant in full, or issued and outstanding Voting Shares (c) the occurrence of a Significant Eventas hereinafter defined), other than solely as a Permitted Purchase consequence of a reduction in the number of Equity Securities outstanding or with the consent of at least seventy-five percent (75%) as a result of the members issuance of any Common Shares in respect of Purchased Securities due to an adjustment or share payment provisions in the Board, each Certificate of the Investor and Founders agree not to, and to cause their respective Affiliates not to, Designations or this Agreement; or
(i) acquire, offer to acquire, or agree to acquire, by purchase or otherwise, any Securities (or beneficial ownership thereof), or rights or options to acquire any Securities (or beneficial ownership thereof), or any assets or businesses of the Company or its Subsidiaries constituting a significant portion of the consolidated assets of the Company and its Subsidiaries; (ii) make any public announcement with respect to, or submit a proposal for or offer of (with or without conditions), any merger, consolidation, tender or exchange offer, amalgamation, scheme of arrangement, recapitalization, reorganization, liquidation, dissolution, business combination, issuance or repurchase of Securities (including any tender offer) or other extraordinary transaction involving the Company, any of the assets of the Company or its Subsidiaries constituting a significant portion of the consolidated assets of the Company and its Subsidiaries; (iii) advise, encourage, support or influence any Person (except the Board) with respect to any of the foregoing; (iv) initiate, or in any way participate, directly or indirectly, participate in any “solicitation” solicitation of “proxies” proxies to vote (as such terms are used in the rules of the SEC)vote, or seek to advise or influence any Person or entity person with respect to the voting of, any Voting Shares of the Company or any of its subsidiaries, (ii) seek or propose to influence, advise, change or control the management, board of directors, policies, affairs or strategy of the Company or any of its subsidiaries, in each case by way of any public communication, or any communication to securityholders, intended for such purpose (it being understood that this clause (ii) shall not prohibit the Investor from exercising its rights under Section 3.7 or any Investor Representative from performing his or her duties as a director of the Company), (iii) make or encourage others to make a proposal for any transaction which would result in a Change of Control (as defined below) or (iv) enter into any agreements or understandings with any person (other than the Company or any of its subsidiaries) for the purpose of any of the actions described in clauses (i), (ii) and (iii) above.
(c) The Investor’s obligations under Sections 4.1(a) and 4.1(b) shall terminate on the earliest of: (i) the third anniversary of the Closing Date; (ii) the date on which the Investor and its Affiliates beneficially own less than 5% of the issued and outstanding Voting Securities Shares; (iii) the date on which the Company’s board of directors (x) publicly recommends that shareholders tender their shares to any person who has publicly announced or commenced a tender or exchange offer that, if consummated, would result in a Change of Control, or (y) fails to recommend that shareholders reject such offer within ten (10) business days after its public announcement or commencement; (iv) the public announcement by the Company that it is “for sale” in a transaction, or that it supports a proposed transaction, that would result in a Change of Control; (v) the execution by the Company of a definitive agreement that, if consummated, would result in a Change of Control, (vi) the public announcement by or on behalf of any person (other than Investor and its Affiliates) or “group”, as such term is defined in Section 13(d)(3) of the Exchange Act (other than any group that includes Investor or any of its Affiliates) of the commencement of a bona fide proxy or consent solicitation to elect or remove a majority of the board of directors of the Company that is not, within ten (10) days after the announcement of such proxy or consent solicitation, publicly opposed by the Company’s board of directors and that would, if successful, result in a Change of Control; or (vii) failure of any individual who is duly designated by the Investor to serve as an Investor Representative to be elected and maintained as a director as provided in Section 3.7 (other than any such failure due to the failure of such individual to comply with the requirements included in Section 3.7); (each of the events in clauses (i) – (vii) above, a “Standstill Termination Event”). A “Change of Control” shall be deemed to have occurred (i) if any person (other than the Investor and its Affiliates) shall acquire beneficial ownership of more than 50% of the Voting Shares issued and outstanding, (ii) upon consummation of a merger or consolidation of the Company into or with another person (other than the Investor and its Affiliates) in which the shareholders of the Company immediately prior to the consummation of such transaction shall own less than 50% of the voting securities of the surviving person (or the parent of the surviving person where the surviving person is wholly owned by the parent person) immediately following the consummation of such transaction, (iii) upon the consummation of the sale, transfer or lease (but not including a transfer or lease by pledge or mortgage to a bona fide lender) of all or substantially all of the assets of the Company to another person other than a subsidiary of the Company or (iv) upon the adoption of a plan of liquidation or dissolution of the Company.
(d) As used herein, “Equity Securities” means, at any time, all Voting Shares, Series A Shares and other securities of any person convertible into, or exchangeable or exercisable for, Voting Shares, in each case then issued and outstanding. “Voting Shares” means, at any time, all Common Shares, Series A Shares and other voting shares (if any) of the Company, or formin each case then issued and outstanding. As used herein, join or “beneficial ownership”, “beneficially own” and correlative terms have the meaning set forth in any way participate in a group Rule 13d-3 and Rule 13d-5 under the Exchange Act and, for the avoidance of doubt, it is understood and agreed that the following shall apply for the purpose of calculating the voting beneficial ownership of Voting Shares of any Voting Securities of the Company person for any purpose hereunder: (other than as contemplated hereunder or under the Shareholders Agreement); or (vi) publicly request the Company or Board amend or waive any provision of this paragraph Equity Security (including this sentence)any Series A Shares) that is convertible into, or contest the validity of this paragraph (including this sentence); providedexchangeable or exercisable for, that nothing in the preceding clauses shall (A) restrict the Investor from making a private, non-public, proposal to the Board for any of Voting Shares and is beneficially owned by such matters, (B) apply to any “beneficial ownership” of Securities acquired or deemed to be acquired by virtue of any of the arrangements expressly contemplated under the Transaction Documents, including any voting agreements contemplated under the Shareholders Agreement, or (C) in any way be deemed to require any Investor Director to take (or omitting to take) any actions in a manner he or she reasonably believes would be inconsistent with the fiduciary duties of the Directors under applicable Law (or obligate the Investor to cause any Investor Director to act or omit to act in a manner in which such Investor Director reasonably believes would be inconsistent with the fiduciary duties of the Directors under applicable Law). In addition to any other available remedies, the Investor, Founders person or any of their its Affiliates shall be treated as fully converted, exchanged or exercised, as the case may be, into or for the underlying Voting Shares (regardless of when or on what conditions such conversion, exchange or exercise may occur), (ii) Equity Securities that are beneficially owned by such person and each of its Affiliates, successors or permitted assigns by any member of a group of which such person or any of its Affiliates is a member pursuant to said Rule 13d-5, shall be aggregated as if beneficially owned by such person and (iii) any Equity Security that is convertible into, or exchangeable or exercisable for, Voting Shares and is beneficially owned by any person other than such person or any of its Affiliates shall not have the right to vote or grant consents with respect to any Securities acquired in violation of this Section 6.4(i) and agrees to promptly sell any such Securities and shall be restrained from voting or granting consents with respect to all of its Securities at any annual or special meeting of the stockholders of the Company, however called, or in connection with any action by written consent in lieu of any such annual or special meeting of stockholders of the Company in violation of this Section 6.4(iv) and any decision, action or transaction by such Person made or effected in violation of this Section 6.4(iv) shall be null and void ab initiotaken into account. Notwithstanding the foregoing, if following any Permitted Purchase made by the Founders, the Investor and its Affiliates and their respective transferees no longer hold, in the aggregate, the largest number of shares of Common Stock of the Company (assuming the conversion of Series B Preferred Stock into Common Stock, and with the Founders deemed as one single shareholder solely for the purpose of such determination)calculating the Two Director Amount and the One Director Amount in Section 3.7, beneficial ownership of the Investor shall have mean the right to purchase such number beneficial ownership of shares of Common Stock or other Securities so as to enable the Investor and its Affiliates and their respective transferees to become the holders, in the aggregate, any controlled Affiliate of the largest number Investor but shall not include beneficial ownership of shares of Common Stock any Affiliate that is not a controlled Affiliate of the Company (assuming Investor or any member of a group that is not the conversion of Series B Preferred Stock into Common Stock, and with the Founders deemed as one single shareholder for the purpose of such determination), Investor or any such purchases shall not be deemed to violate controlled Affiliate of the provision of this Section 6.4Investor.
Appears in 1 contract
Standstill Agreement. For a Employee agrees that, for the period commencing with beginning on the date closing of this Agreement the Apex Merger and ending at the close of business on the earlier second anniversary of the closing of the Apex Merger, neither Employee nor any of his affiliates (as such term is defined under the Securities Exchange Act of 1934, as amended (the "1934 Act")) will in any manner, directly or indirectly, (a) three effect or seek, offer or propose (3whether publicly or otherwise) years following the Closing Dateto effect or cause or participate in or in any way assist any other person to affect to seek, offer or propose (bwhether publicly or otherwise) the date when the Investor exercises the Warrant to effect or cause or participate in full, or (c) the occurrence of a Significant Event, other than a Permitted Purchase or with the consent of at least seventy-five percent (75%) of the members of the Board, each of the Investor and Founders agree not to, and to cause their respective Affiliates not to, (i) acquire, offer to acquire, or agree to acquire, by purchase or otherwise, any Securities acquisition of any securities (or beneficial ownership thereof), ) or rights or options to acquire any Securities assets (or beneficial ownership thereof), or any assets or businesses other than non-material assets) of the Company or its Subsidiaries constituting a significant portion of the consolidated assets of the Company and its SubsidiariesHoldco; (ii) make any public announcement with respect to, or submit a proposal for or offer of (with or without conditions), any merger, consolidation, tender or exchange offer, amalgamationmerger, scheme of arrangement, consolidation or other business combination involving the Company or Holdco; (iii) any recapitalization, reorganizationrestructuring, liquidation, dissolution, business combination, issuance or repurchase of Securities (including any tender offer) dissolution or other extraordinary transaction involving the Company, any of the assets of with respect to the Company or its Subsidiaries constituting a significant Holdco or any material portion of the consolidated assets of the Company and its SubsidiariesCompany's or Holdco's business; (iii) advise, encourage, support or influence any Person (except the Board) with respect to any of the foregoing; (iv) initiate, or in any way participate, directly or indirectly, in any “"solicitation” " of “"proxies” to vote " (as such terms are used in the proxy rules of the SEC), Securities and Exchange Commission) or seek consents to advise vote any voting securities of Holdco or influence any Person or entity with respect to the voting of any Voting Securities of the Company, or ; (b) form, join or in any way participate in a group for "group" (as defined under the purpose 0000 Xxx) with respect to the securities of Holdco or the voting Company; (c) otherwise act, alone or in concert with others, to seek to control or influence the management, Board of any Voting Securities Directors or policies of the Company (other than as contemplated hereunder or under the Shareholders Agreement); Holdco or (v) publicly request the Company or Board amend or waive propose any provision of this paragraph (including this sentence), or contest the validity of this paragraph (including this sentence); provided, that nothing in the preceding clauses shall (A) restrict the Investor from making matter for submission to a private, non-public, proposal to the Board for any of such matters, (B) apply to any “beneficial ownership” of Securities acquired or deemed to be acquired by virtue of any of the arrangements expressly contemplated under the Transaction Documents, including any voting agreements contemplated under the Shareholders Agreement, or (C) in any way be deemed to require any Investor Director to take (or omitting to take) any actions in a manner he or she reasonably believes would be inconsistent with the fiduciary duties of the Directors under applicable Law (or obligate the Investor to cause any Investor Director to act or omit to act in a manner in which such Investor Director reasonably believes would be inconsistent with the fiduciary duties of the Directors under applicable Law). In addition to any other available remedies, the Investor, Founders or any of their Affiliates, successors or permitted assigns shall not have the right to vote or grant consents with respect to any Securities acquired in violation of this Section 6.4(i) and agrees to promptly sell any such Securities and shall be restrained from voting or granting consents with respect to all of its Securities at any annual or special meeting of the stockholders of the Company, however called, or in connection with any action by written consent in lieu of any such annual or special meeting of stockholders of the Company or Holdco; (d) take any action to which, to the knowledge of Employee requires the Company or Holdco to make a public announcement regarding any of the types of matters set forth in violation (a) above; or (e) enter into any discussions or arrangements with any third party with respect to any of this Section 6.4(iv) and the foregoing or advise, assist, encourage, finance or seek to persuade others to take any decision, action or transaction by such Person made or effected in violation of this Section 6.4(iv) shall be null and void ab initiowith respect to the foregoing. Notwithstanding anything to the foregoingcontrary contained in this Amendment Agreement, if following nothing in this Amendment Agreement shall prohibit Employee or his affiliates from purchasing any Permitted Purchase made by the Foundersdebt, the Investor and its Affiliates and their respective transferees no longer hold, in the aggregate, the largest number or up to an aggregate of shares not more than 1.5% of Common Stock any class of publicly traded equity securities of the Company (assuming the conversion or of Series B Preferred Stock into Common Stock, and with the Founders deemed as one single shareholder for the purpose of such determination), the Investor shall have the right to purchase such number of shares of Common Stock or other Securities so as to enable the Investor and its Affiliates and their respective transferees to become the holders, in the aggregate, of the largest number of shares of Common Stock of the Company (assuming the conversion of Series B Preferred Stock into Common Stock, and with the Founders deemed as one single shareholder for the purpose of such determination), any such purchases shall not be deemed to violate the provision of this Section 6.4Holdco.
Appears in 1 contract
Samples: Amendment Agreement (Avocent Corp)
Standstill Agreement. For You hereby further acknowledge that the Evaluation Material is being furnished to you in consideration of your agreement that neither you (including any person or entity directly or indirectly, through one or more intermediaries, controlling you or controlled by you or under common control with you) nor any of your Representatives, acting alone or as part of any group, will, for a period commencing with of two years from the date of this Agreement and ending on letter agreement, directly or indirectly, unless specifically requested to do so in writing in advance by the earlier Company's Board of (a) three (3) years following the Closing DateDirectors: acquire or agree, (b) the date when the Investor exercises the Warrant in fulloffer, seek or (c) the occurrence of a Significant Event, other than a Permitted Purchase or with the consent of at least seventy-five percent (75%) of the members of the Board, each of the Investor and Founders agree not to, and to cause their respective Affiliates not to, (i) acquire, offer propose to acquire, or agree cause to acquirebe acquired, by purchase or otherwiseownership (including, any Securities (or but not limited to, beneficial ownership thereofas defined in Rule 13d-3 under the Exchange Act) of any of the securities or assets of the Company (including any evidence of indebtedness), or any rights or options to acquire any Securities (or beneficial ownership thereof)such ownership, or any assets or businesses of the Company or its Subsidiaries constituting a significant portion of the consolidated assets of the Company and its Subsidiaries; (ii) make any public announcement with respect to, or submit a proposal for or offer of (with or without conditions), any merger, consolidation, tender or exchange offer, amalgamation, scheme of arrangement, recapitalization, reorganization, liquidation, dissolution, business combination, issuance or repurchase of Securities (including any tender offer) or other extraordinary transaction involving the Company, any of the assets of the Company or its Subsidiaries constituting a significant portion of the consolidated assets of the Company and its Subsidiaries; (iii) advise, encourage, support or influence any Person (except the Board) with respect to any of the foregoing; (iv) initiatemake, or in any way participateparticipate in, directly or indirectly, in any “"solicitation” " of “"proxies” to vote " (as such terms are used in the proxy rules of the SEC), Securities and Exchange Commission) to vote or seek to advise or influence in any Person manner whatsoever any person or entity with respect to the voting of any Voting Securities securities of the Company, or form, join join, or in any way participate in a group "group" (within the meaning of Section 13d(3) of the Exchange Act) with respect to any voting securities of the Company, or arrange, or in any way participate in, any financing for the purpose purchase of any voting securities or assets or securities convertible or exchangeable into or exercisable for any voting securities or assets of the voting Company, or otherwise act, whether alone or in concert with others, to seek to propose to the Company or any of its stockholders any Voting Securities merger, business combination, restructuring, recapitalization or similar transaction to or with the Company or otherwise act, whether alone or in concert with others, to seek to control, change or influence the management, Board of Directors or policies of the Company, or nominate any person as a Director of the Company who is not nominated by the then incumbent Directors, or propose any matter to be voted upon by the stockholders of the Company, or solicit, negotiate with, or provide any information to, any person (other than as contemplated hereunder the Company and its Representatives on a confidential basis regarding a negotiated Proposed Transaction) with respect to a merger, exchange offer or under liquidation of the Shareholders Agreement); Company or any other acquisition of the Company or any other similar transaction, or announce an intention to, or enter into any discussion, negotiations, arrangements or understandings with any third party with respect to, any of the foregoing, or disclose any intention, plan or arrangement inconsistent with the foregoing, or advise, assist or encourage any other person in connection with any of the foregoing. In addition, you also agree during such two-year period not to (vi) publicly request the Company (or Board any of the Representatives), directly or indirectly, to amend or waive any provision of this paragraph 7 (including this sentence), or contest the validity of this paragraph (including this sentence); provided, that nothing in the preceding clauses shall (A) restrict the Investor from making a private, non-public, proposal to the Board for any of such matters, (B) apply to any “beneficial ownership” of Securities acquired or deemed to be acquired by virtue of any of the arrangements expressly contemplated under the Transaction Documents, including any voting agreements contemplated under the Shareholders Agreement, or (Cii) in take any way be deemed action that might require the Company to require any Investor Director to take make a public announcement regarding a possible transaction (or omitting to take) any actions in a manner he or she reasonably believes would be inconsistent with the fiduciary duties of the Directors under applicable Law (or obligate the Investor to cause any Investor Director to act or omit to act in a manner in which such Investor Director reasonably believes would be inconsistent with the fiduciary duties of the Directors under applicable Law). In addition to any other available remediesthan, the Investor, Founders or any of their Affiliates, successors or permitted assigns shall not have the right to vote or grant consents with respect to any Securities acquired in violation of this Section 6.4(i) and agrees to promptly sell any such Securities and shall be restrained from voting or granting consents with respect to all of its Securities at any annual or special meeting of the stockholders of the Companyclause (ii), however called, or in connection with any action by written consent in lieu of any such annual or special meeting of stockholders of the Company in violation of this Section 6.4(iv) and any decision, action or transaction by such Person made or effected in violation of this Section 6.4(iv) shall be null and void ab initio. Notwithstanding the foregoing, if following any Permitted Purchase made by the Founders, the Investor and its Affiliates and their respective transferees no longer hold, in the aggregate, the largest number of shares of Common Stock of the Company (assuming the conversion of Series B Preferred Stock into Common Stock, and with the Founders deemed as one single shareholder for the purpose of such determinationProposed Transaction), the Investor shall have the right to purchase such number of shares of Common Stock or other Securities so as to enable the Investor and its Affiliates and their respective transferees to become the holders, in the aggregate, of the largest number of shares of Common Stock of the Company (assuming the conversion of Series B Preferred Stock into Common Stock, and with the Founders deemed as one single shareholder for the purpose of such determination), any such purchases shall not be deemed to violate the provision of this Section 6.4.
Appears in 1 contract
Standstill Agreement. For Each Requesting Party agrees that, except as may be approved by the FVE Board in its sole discretion, for a period commencing with on the date of this Agreement hereof and ending on the earlier of date that is ten (10) years after the date hereof (such period, the "Standstill Term"), such Requesting Party will not, and will cause its Controlled Affiliates, Permitted Transferees and Representatives to not, in any manner, directly or indirectly, either alone or in concert with one or more other Person(s):
(a) three effect or seek, offer or propose (3whether publicly or otherwise) years following the Closing Dateto effect, cause, participate in or in any way advise, assist or encourage any other Person to effect or seek, offer or propose (whether publicly or otherwise) to effect, cause or participate in, (bA) the date when the Investor exercises the Warrant in full, or (c) the occurrence of a Significant Event, other than a Permitted Purchase or with the consent of at least seventy-five percent (75%) of the members of the Board, each of the Investor and Founders agree not to, and to cause their respective Affiliates not to, (i) acquire, offer to acquire, or agree to acquire, by purchase or otherwise, any Securities (or beneficial ownership thereof), or rights or options to acquire any Securities (or beneficial ownership thereof), or any assets or businesses of the Company or its Subsidiaries constituting a significant portion of the consolidated assets of the Company and its Subsidiaries; (ii) make any public announcement with respect to, or submit a proposal for or offer of (with or without conditions), any merger, consolidation, tender or exchange offer, amalgamationmerger or other business combination or extraordinary transaction involving, scheme or any sale of arrangementall or a substantial portion of the assets of, the Company or any of its subsidiaries, other than the Proposed Acquisition; (B) any recapitalization, reorganizationrestructuring, liquidationliquidation or dissolution with respect to the Company or any of its subsidiaries; or (C) any "solicitation" of "proxies" (as such terms are defined in Rule 14a-1 of Regulation 14A under the 0000 Xxx) or consents to vote any Common Shares or other voting securities of the Company;
(b) deposit any Common Shares or other voting securities of the Company in a voting trust or subject Common Shares or other voting securities of the Company to a voting agreement or other agreement or arrangement with respect to the voting of such shares or securities, dissolution, business combination, issuance other than with other Requesting Parties of this Agreement;
(c) publicly request that the Company amend or repurchase waive any provision of Securities this Agreement;
(d) take any action (including any tender offer) public announcement or other extraordinary transaction involving communication with or to the Company, ) which would reasonably be expected to result in the Company making a public announcement regarding any of the assets types of the Company or its Subsidiaries constituting a significant portion of the consolidated assets of the Company and its Subsidiariesmatters set forth in this Section 5.1; or
(iiie) advise, encourage, support assist or influence enter into any Person (except the Board) discussions or arrangements with any third party with respect to any of the foregoing; . Nothing in Section 5.1 of this Agreement shall be deemed to (iv1) initiate, restrict or in limit the Requesting Parties' ability to discuss any way participate, directly matter confidentially with the Chief Executive Officer or indirectly, in any “solicitation” of “proxies” to vote (as such terms are used in the rules of the SEC), or seek to advise or influence any Person or entity with respect to the voting of any Voting Securities of the Company, or form, join or in any way participate in a group for the purpose of the voting of any Voting Securities Chief Financial Officer of the Company or with the FVE Board or any member of the FVE Board or to communicate, on a confidential basis, with their own Representatives; (other than 2) restrict any director, officer, or manager of any Requesting Party or any of its Controlled Affiliates (including any Requesting Party acting in such capacity) from acting in his, her or its capacity as contemplated hereunder a director, trustee, officer or under manager of any Public Company (including the Shareholders Agreement)Company) in accordance with his or her fiduciary, statutory, contractual or similar duties to such Entity or the stockholders thereof; or (v3) publicly request restrict any Public Company that is not Controlled by a Requesting Party. For the avoidance of doubt, nothing in this Agreement shall be construed to prevent any Person who is a director, officer, manager or employee of the Company from performing any duties in such capacity, including, without limitation, discussing, considering or voting on any matter, interacting with the Board and/or management of the Company or Board amend or waive from participating in any provision activity of this paragraph (including this sentence), or contest the validity of this paragraph (including this sentence); provided, that nothing in the preceding clauses shall (A) restrict the Investor from making a private, non-public, proposal to the Board for any of such matters, (B) apply to any “beneficial ownership” of Securities acquired or deemed to be acquired by virtue of any of the arrangements expressly contemplated under the Transaction Documents, including any voting agreements contemplated under the Shareholders Agreement, or (C) in any way be deemed to require any Investor Director to take (or omitting to take) any actions in a manner he or she reasonably believes would be inconsistent with the fiduciary duties of the Directors under applicable Law (or obligate the Investor to cause any Investor Director to act or omit to act in a manner in which such Investor Director reasonably believes would be inconsistent with the fiduciary duties of the Directors under applicable Law). In addition to any other available remedies, the Investor, Founders or any of their Affiliates, successors or permitted assigns shall not have the right to vote or grant consents with respect to any Securities acquired in violation of this Section 6.4(i) and agrees to promptly sell any such Securities and shall be restrained from voting or granting consents with respect to all of its Securities at any annual or special meeting of the stockholders of and/or the Company, however called, or in connection with any action by written consent in lieu of any such annual or special meeting of stockholders of the Company in violation of this Section 6.4(iv) and any decision, action or transaction by such Person made or effected in violation of this Section 6.4(iv) shall be null and void ab initio. Notwithstanding the foregoing, if following any Permitted Purchase made by the Founders, the Investor and its Affiliates and their respective transferees no longer hold, in the aggregate, the largest number of shares of Common Stock of the Company (assuming the conversion of Series B Preferred Stock into Common Stock, and with the Founders deemed as one single shareholder for the purpose of such determination), the Investor shall have the right to purchase such number of shares of Common Stock or other Securities so as to enable the Investor and its Affiliates and their respective transferees to become the holders, in the aggregate, of the largest number of shares of Common Stock of the Company (assuming the conversion of Series B Preferred Stock into Common Stock, and with the Founders deemed as one single shareholder for the purpose of such determination), any such purchases shall not be deemed to violate the provision of this Section 6.4.
Appears in 1 contract
Samples: Consent, Standstill, Registration Rights and Lock Up Agreement (ABP Acquisition LLC)
Standstill Agreement. For a St. Xxxxxx covenants and agrees with the Company that it shall not, during the period commencing with the date of this Agreement and ending on the earlier Effective Date and terminating as provided in SECTION 4.2 directly or indirectly, alone or in concert with others, unless specifically requested in writing by the Company or by a resolution of a majority of the Directors (or take any action that would require the Company to make an announcement regarding any of the following):
(a) three effect, seek, offer, engage in, propose (3whether publicly or otherwise) years following the Closing Date, (b) the date when the Investor exercises the Warrant in fullor cause or participate in, or assist any other Person to effect, seek, engage in, offer or propose (cwhether publicly or otherwise) the occurrence of a Significant Event, other than a Permitted Purchase or with the consent of at least seventy-five percent (75%) of the members of the Board, each of the Investor and Founders agree not to, and to cause their respective Affiliates not to, participate in:
(i) acquireany exchange offer, offer to acquire, or agree to acquire, by purchase or otherwise, any Securities (or beneficial ownership thereof), or rights or options to acquire any Securities (or beneficial ownership thereof), or any assets or businesses of the Company or its Subsidiaries constituting a significant portion of the consolidated assets of the Company and its Subsidiaries; (ii) make any public announcement with respect to, or submit a proposal for or offer of (with or without conditions), any merger, consolidation, tender or exchange offer, amalgamation, scheme of arrangement, recapitalization, reorganization, liquidation, dissolutionshare exchange, business combination, issuance or repurchase of Securities (including any tender offer) recapitalization, restructuring, liquidation, dissolution or other extraordinary transaction involving the Company, Company or any of its subsidiaries or any material portion of its or their business or any purchase of all or any substantial part of the assets of the Company or any of its Subsidiaries constituting a significant subsidiaries or any material portion of its or their business; or
(ii) any “solicitation” of “proxies” (as such terms are used the consolidated assets proxy rules of the SEC but without regard to the exclusion set forth in Section 14a-1(1)(2)(iv) from the definition of “solicitation”) with respect to the Company or any of its Affiliates or becoming a “participant” in any “election contest” (as such terms are used in the proxy rules of the SEC) with respect to the Company or any of its Affiliates;
(b) propose any matter for submission to a vote of shareholders of the Company and or call or seek to call a meeting of the shareholders of the Company;
(c) seek election to the Board, seek to place a representative or other nominee on the Board or seek the removal of any Director;
(d) grant any proxy with respect to any Shares (other than to the Secretary of the Company);
(e) execute any written consent with respect to any Shares, other than at the request of the Company or a majority of the Directors;
(f) form, join or participate in a Group with respect to any Shares or deposit any Shares in a voting trust or subject any Shares to any arrangement or agreement with respect to the voting of such Shares or other agreement having similar effect;
(g) take any other action to seek to affect the control of the management or Board of the Company or any of its Subsidiaries; Affiliates, including publicly suggesting or announcing its willingness to engage in or have another Person engage in a transaction that could reasonably be expected to result in a transaction of the type described in SECTION 4.1(a)(i);
(iiih) enter into any discussions, negotiations, arrangements or understandings with any Person with respect to any of the foregoing, or advise, encourageassist, support encourage or influence seek to persuade others to take any Person (except the Board) action with respect to any of the foregoing; with respect to the Company or the Common Shares, (ivi) initiateotherwise communicate with the Company’s shareholders or others pursuant to Rule 14a-1(1)(2)(iv) under the Exchange Act, (ii) participate in, or take any action pursuant to any “shareholder access” proposal that may be adopted by the SEC, whether in accordance with proposed Rule 14a-11 or otherwise, or (iii) conduct any nonbinding referendum;
(i) make any statement or disclose to any Person, or otherwise induce, encourage, discuss or facilitate, any intention, plan or arrangement inconsistent with the foregoing or which would result in the Company or any of its Affiliates to be required to make any such disclosure in any way participatefiling with a governmental entity or being required to make a public announcement with respect thereto;
(j) bring any action or otherwise act to contest the validity of this Article IV (including this SECTION 4.1) or seek a release from the restrictions contained in this Article IV; or
(k) request the Company or any of its Affiliates, Directors, officers, employees, representatives, advisors or agents, or any party hereto, directly or indirectly, in any “solicitation” of “proxies” to vote amend or waive this Article IV, the Charter or the By-laws (as such terms are used in the rules of the SEC), or seek to advise or influence any Person or entity with respect to the voting of any Voting Securities of the Company, or form, join or in any way participate in a group for the purpose of the voting of any Voting Securities similar constituent documents) of the Company (other than as contemplated hereunder or under the Shareholders Agreement); or (v) publicly request the Company or Board amend or waive any provision of this paragraph (including this sentence), or contest the validity of this paragraph (including this sentence); provided, that nothing in the preceding clauses shall (A) restrict the Investor from making a private, non-public, proposal to the Board for any of such matters, (B) apply to any “beneficial ownership” of Securities acquired or deemed to be acquired by virtue of any of the arrangements expressly contemplated under the Transaction Documents, including any voting agreements contemplated under the Shareholders Agreement, or (C) in any way be deemed to require any Investor Director to take (or omitting to take) any actions in a manner he or she reasonably believes would be inconsistent with the fiduciary duties of the Directors under applicable Law (or obligate the Investor to cause any Investor Director to act or omit to act in a manner in which such Investor Director reasonably believes would be inconsistent with the fiduciary duties of the Directors under applicable Law). In addition to any other available remedies, the Investor, Founders or any of their its Affiliates, successors or permitted assigns shall not have the right to vote or grant consents with respect to any Securities acquired in violation of this Section 6.4(i) and agrees to promptly sell any such Securities and shall be restrained from voting or granting consents with respect to all of its Securities at any annual or special meeting of the stockholders of the Company, however called, or in connection with any action by written consent in lieu of any such annual or special meeting of stockholders of the Company in violation of this Section 6.4(iv) and any decision, action or transaction by such Person made or effected in violation of this Section 6.4(iv) shall be null and void ab initio. Notwithstanding the foregoing, if following any Permitted Purchase made by the Founders, the Investor and its Affiliates and their respective transferees no longer hold, in the aggregate, the largest number of shares of Common Stock of the Company (assuming the conversion of Series B Preferred Stock into Common Stock, and with the Founders deemed as one single shareholder for the purpose of such determination), the Investor shall have the right to purchase such number of shares of Common Stock or other Securities so as to enable the Investor and its Affiliates and their respective transferees to become the holders, in the aggregate, of the largest number of shares of Common Stock of the Company (assuming the conversion of Series B Preferred Stock into Common Stock, and with the Founders deemed as one single shareholder for the purpose of such determination), any such purchases shall not be deemed to violate the provision of this Section 6.4.
Appears in 1 contract
Samples: Voting and Standstill Agreement (United American Healthcare Corp)
Standstill Agreement. For a During the period commencing with the date of this Agreement that begins on July 31, 2007 and ending ends on the earlier of first anniversary thereof (a) three (3) years following the Closing Date, (b) the date when the Investor exercises the Warrant in full, or (c) the occurrence of a Significant Event"Standstill Period"), other than solely in his capacity as a Permitted Purchase member of the Board, Teece may not (and may not assist or with encourage any other person to), and will cause each of his affiliates and representatives not to (and not to assist or encourage any other person to), directly or indirectly, without the prior written consent of at least seventy-five the Company:
11.1 acquire or agree, offer, seek, or propose to acquire or cause to be acquired (by merger, tender offer, purchase, statutory share exchange, joint venture or otherwise), ownership (including beneficial ownership as defined in Rule 13d-3 under the Exchange Act) of any of the Company's assets or businesses or any voting stock that would result in beneficial ownership by Teece or any of his affiliates or representatives, of voting stock of the Company in excess of twenty percent (7520%) of the members total voting power of the Board, each outstanding shares of the Investor and Founders agree not to, and to cause their respective Affiliates not to, (i) acquire, offer to acquire, or agree to acquire, by purchase or otherwise, any Securities (or beneficial ownership thereof), or rights or options to acquire any Securities (or beneficial ownership thereof), or any assets or businesses capital stock of the Company in the aggregate, for which purpose any right or its Subsidiaries constituting a significant portion option (including convertible security) to acquire such ownership of voting stock will constitute beneficial ownership of such voting stock, regardless of when it is exercisable, except, in each event, pursuant to any proposal expressly solicited by the Board of Directors of the consolidated assets Company, and in such event such proposal will not be pursued, directly or indirectly, by Teece or any of his affiliates or representatives, if Teece is hereafter advised by the Company or any of its representatives that the Company is no longer interested in pursuing such proposal;
11.2 otherwise agree, offer, seek, or propose to merge or consolidate with, or enter into any business combination or joint venture with, or effect any recapitalization, restructuring, liquidation, dissolution or other transaction with respect to the Company or any of the Company's affiliates;
11.3 solicit, or participate in the solicitation of, proxies or consents with respect to any securities of the Company and its Subsidiaries; (ii) in connection with the election of directors or any other matter or seek to publicize by press release or other communication Teece's position concerning the election of directors or any other matter to be considered by the shareholders of the Company;
11.4 make any other public announcement with respect to, or submit a proposal for or offer of (with or without conditions), any merger, consolidation, tender or exchange offer, amalgamation, scheme of arrangement, recapitalization, reorganization, liquidation, dissolution, business combination, issuance or repurchase of Securities (including any tender offer) or other extraordinary transaction involving the Company, to any of the assets foregoing or take any other action that might require that the Company make a public announcement with respect to any of the Company foregoing; or
11.5 enter into any discussions, negotiations, arrangements or its Subsidiaries constituting a significant portion of understandings with any person (other than the consolidated assets of the Company and its Subsidiaries; (iii) advise, encourage, support or influence any Person (except the BoardCompany) with respect to any of the foregoing; . If, at any time during the Standstill Period, Teece or any of his affiliates or representatives is approached by any person regarding a transaction involving any of the Company's assets (iv) initiate, or in any way participate, directly or indirectly, in any “solicitation” of “proxies” to vote (as such terms are used other than in the rules ordinary course of the SEC)business, consistent with past practices) or seek to advise businesses or influence any Person or entity voting stock (other than with respect to brokerage or trading transactions by a securities dealer), then Teece must promptly notify the voting of any Voting Securities Company of the Company, or form, join or in any way participate in a group for the purpose of the voting of any Voting Securities of the Company (other than as contemplated hereunder or under the Shareholders Agreement); or (v) publicly request the Company or Board amend or waive any provision of this paragraph (including this sentence), or contest the validity of this paragraph (including this sentence); provided, that nothing in the preceding clauses shall (A) restrict the Investor from making a private, non-public, proposal to the Board for any nature of such matters, (B) apply to any “beneficial ownership” of Securities acquired or deemed to be acquired by virtue of any of transaction and the arrangements expressly contemplated under the Transaction Documents, including any voting agreements contemplated under the Shareholders Agreement, or (C) in any way be deemed to require any Investor Director to take (or omitting to take) any actions in a manner he or she reasonably believes would be inconsistent with the fiduciary duties of the Directors under applicable Law (or obligate the Investor to cause any Investor Director to act or omit to act in a manner in which such Investor Director reasonably believes would be inconsistent with the fiduciary duties of the Directors under applicable Law)parties thereto. In addition to any other available remedies, the Investor, Founders or any of their Affiliates, successors or permitted assigns shall not have the right to vote or grant consents with respect to any Securities acquired in violation For purposes of this Section 6.4(i) and agrees to promptly sell any such Securities and shall be restrained from voting or granting consents with respect to all of its Securities at any annual or special meeting of the stockholders of the Company, however called, or in connection with any action by written consent in lieu of any such annual or special meeting of stockholders of the Company in violation of this Section 6.4(iv) and any decision, action or transaction by such Person made or effected in violation of this Section 6.4(iv) shall be null and void ab initio. Notwithstanding the foregoing, if following any Permitted Purchase made by the Founders11, the Investor term "person" will be broadly interpreted to include without limitation any corporation, company, partnership and its Affiliates and their respective transferees no longer hold, in the aggregate, the largest number of shares of Common Stock of the Company (assuming the conversion of Series B Preferred Stock into Common Stockindividual, and with the Founders deemed as one single shareholder for public; the purpose of such determination), the Investor shall have the right to purchase such number of shares of Common Stock or other Securities so as to enable the Investor and its Affiliates and their respective transferees to become the holders, in the aggregate, of the largest number of shares of Common Stock of the Company (assuming the conversion of Series B Preferred Stock into Common Stock, and with the Founders deemed as one single shareholder for the purpose of such determination), any such purchases shall not be deemed to violate the provision of this Section 6.4.term "the
Appears in 1 contract
Samples: Employment Agreement (Lecg Corp)
Standstill Agreement. For a period commencing with During the date of this Agreement and ending on the earlier of (a) three (3) years following the Closing DateLock-Up Period, (b) the date when the Investor exercises the Warrant in full, or (c) the occurrence of a Significant Event, other than a Permitted Purchase or with the consent of at least seventy-five percent (75%) of the members of the Board, each of the Investor and Founders agree not to, and to cause their respective Affiliates not to, except (i) acquire, offer to acquire, or agree to acquire, by purchase or otherwise, any Securities (or beneficial ownership thereof), or rights or options to acquire any Securities (or beneficial ownership thereof), or any assets or businesses with the prior written consent of the Company or its Subsidiaries constituting a significant portion of the consolidated assets of the Company and its Subsidiaries; (ii) make by way of stock dividends or other distributions made to the Company's stockholders generally, Purchaser will not, and, subject to Section 5.3, will not encourage, direct, facilitate or cause any public announcement with respect of its Affiliates, employees, representatives or agents to, directly or submit a proposal for indirectly:
(a) acquire or offer of (with or without conditions)agree, any merger, consolidation, tender or exchange offer, amalgamationseek or propose to acquire ownership (including, scheme but not limited to, beneficial ownership as defined in Rule 13d-3 under the Exchange Act) of arrangement, recapitalization, reorganization, liquidation, dissolution, business combination, issuance or repurchase of Securities (including any tender offer) or other extraordinary transaction involving the Company, any of the assets Voting Stock of the Company or its Subsidiaries constituting a significant portion of the consolidated assets securities convertible or exchangeable into or exercisable for any Voting Stock of the Company if, as a result of such acquisition, Purchaser in the aggregate would own more than 14.9% of the Voting Stock of the Company at the time of such acquisition;
(b) cause to be acquired ownership (including, but not limited to, beneficial ownership as defined in Rule 13d-3 under the Exchange Act) of any Voting Stock of the Company or securities convertible or exchangeable into or exercisable for any Voting Stock of the Company if, as a result of such acquisition, the Person acquiring ownership together with Purchaser and its Subsidiaries; (iii) adviseAffiliates, encourageemployees, support representatives or influence any Person (except agents, in the Board) with respect to any aggregate, would own more than 14.9% of the foregoingVoting Stock of the Company at the time of such acquisition; effect or seek, offer or propose (ivwhether publicly or otherwise and whether or not subject to conditions) initiateto effect, or in any way participateassist, directly facilitate or indirectlyencourage any other Person to effect or seek, offer or propose (whether publicly or otherwise and whether or not subject to conditions) to effect, or announce any intention to effect or cause or participate in (i) any “tender or exchange offer for securities of the Company or merger, consolidation, business combination or acquisition or disposition of assets of the Company; (iii) any recapitalization, restructuring, liquidation, dissolution or other extraordinary transaction with respect to the Company; or (iv) any "solicitation” " of “"proxies” " to vote (as such terms are used in the rules Regulation 14A of the SECExchange Act), becoming a "participant" in any "election contest" (as such terms are defined in Rule 14a-11 of the Exchange Act), or seek initiating, proposing, encouraging or otherwise soliciting any other stockholder(s) of the Company for the approval of any stockholder proposals with respect to the Company, or otherwise seeking to solicit, advise or influence any Person or entity with respect to the voting of any Voting Securities securities of the Company, or ;
(c) form, join or in any way participate in a group for "partnership, limited partnership, syndicate, or other group" (within the purpose meaning of Section 13(d)(3) or Section 14(d)(2) of the voting of Exchange Act) with respect to any Voting Securities Stock of the Company;
(d) otherwise act to seek to control or influence the Company's management, Company Board or policies of the Company (other than as contemplated hereunder including by seeking to replace or under the Shareholders Agreement); or (v) publicly request remove any representative on the Company Board or Board amend or waive seeking to have called any provision of this paragraph (including this sentence), or contest the validity of this paragraph (including this sentence); provided, that nothing in the preceding clauses shall (A) restrict the Investor from making a private, non-public, proposal to the Board for any of such matters, (B) apply to any “beneficial ownership” of Securities acquired or deemed to be acquired by virtue of any of the arrangements expressly contemplated under the Transaction Documents, including any voting agreements contemplated under the Shareholders Agreement, or (C) in any way be deemed to require any Investor Director to take (or omitting to take) any actions in a manner he or she reasonably believes would be inconsistent with the fiduciary duties of the Directors under applicable Law (or obligate the Investor to cause any Investor Director to act or omit to act in a manner in which such Investor Director reasonably believes would be inconsistent with the fiduciary duties of the Directors under applicable Law). In addition to any other available remedies, the Investor, Founders or any of their Affiliates, successors or permitted assigns shall not have the right to vote or grant consents with respect to any Securities acquired in violation of this Section 6.4(i) and agrees to promptly sell any such Securities and shall be restrained from voting or granting consents with respect to all of its Securities at any annual or special meeting of the stockholders of the Company, however called, or in connection with any action by written consent in lieu of any such annual or special meeting of stockholders of the Company or executing any written consent in violation lieu of this Section 6.4(iva meeting of stockholders of the Company);
(e) and arrange, or in any decisionway participate in, action or transaction by such Person made or effected in violation any financing for the purchase of this Section 6.4(iv) shall be null and void ab initio. Notwithstanding the foregoing, if following any Permitted Purchase made by the Founders, the Investor and its Affiliates and their respective transferees no longer hold, in the aggregate, the largest number of shares of Common Voting Stock of the Company (assuming the conversion of Series B Preferred Stock or securities convertible or exchangeable into Common Stock, and with the Founders deemed as one single shareholder or exercisable for the purpose of such determination), the Investor shall have the right to purchase such number of shares of Common Stock or other Securities so as to enable the Investor and its Affiliates and their respective transferees to become the holders, in the aggregate, of the largest number of shares of Common any Voting Stock of the Company Company; or
(assuming the conversion of Series B Preferred Stock f) enter into Common Stockany discussions, and negotiations, arrangements or understandings with the Founders deemed as one single shareholder for the purpose of such determination)or advise, assist or encourage any third party with respect to, any such purchases shall not be deemed to violate of the provision of this Section 6.4foregoing.
Appears in 1 contract
Standstill Agreement. For a During the period commencing with the date of this Agreement that begins on July 31, 2007 and ending ends on the earlier of first anniversary thereof (a) three (3) years following the Closing Date, (b) the date when the Investor exercises the Warrant in full, or (c) the occurrence of a Significant Event“Standstill Period”), other than solely in his capacity as a Permitted Purchase member of the Board, Teece may not (and may not assist or with encourage any other person to), and will cause each of his affiliates and representatives not to (and not to assist or encourage any other person to), directly or indirectly, without the prior written consent of at least seventy-five the Company:
11.1 acquire or agree, offer, seek, or propose to acquire or cause to be acquired (by merger, tender offer, purchase, statutory share exchange, joint venture or otherwise), ownership (including beneficial ownership as defined in Rule 13d-3 under the Exchange Act) of any of the Company’s assets or businesses or any voting stock that would result in beneficial ownership by Teece or any of his affiliates or representatives, of voting stock of the Company in excess of twenty percent (7520%) of the members total voting power of the Board, each outstanding shares of the Investor and Founders agree not to, and to cause their respective Affiliates not to, (i) acquire, offer to acquire, or agree to acquire, by purchase or otherwise, any Securities (or beneficial ownership thereof), or rights or options to acquire any Securities (or beneficial ownership thereof), or any assets or businesses capital stock of the Company in the aggregate, for which purpose any right or its Subsidiaries constituting a significant portion option (including convertible security) to acquire such ownership of voting stock will constitute beneficial ownership of such voting stock, regardless of when it is exercisable, except, in each event, pursuant to any proposal expressly solicited by the Board of Directors of the consolidated assets Company, and in such event such proposal will not be pursued, directly or indirectly, by Teece or any of his affiliates or representatives, if Teece is hereafter advised by the Company or any of its representatives that the Company is no longer interested in pursuing such proposal;
11.2 otherwise agree, offer, seek, or propose to merge or consolidate with, or enter into any business combination or joint venture with, or effect any recapitalization, restructuring, liquidation, dissolution or other transaction with respect to the Company or any of the Company’s affiliates;
11.3 solicit, or participate in the solicitation of, proxies or consents with respect to any securities of the Company and its Subsidiaries; (ii) in connection with the election of directors or any other matter or seek to publicize by press release or other communication Teece’s position concerning the election of directors or any other matter to be considered by the shareholders of the Company;
11.4 make any other public announcement with respect to, or submit a proposal for or offer of (with or without conditions), any merger, consolidation, tender or exchange offer, amalgamation, scheme of arrangement, recapitalization, reorganization, liquidation, dissolution, business combination, issuance or repurchase of Securities (including any tender offer) or other extraordinary transaction involving the Company, to any of the assets foregoing or take any other action that might require that the Company make a public announcement with respect to any of the Company foregoing; or
11.5 enter into any discussions, negotiations, arrangements or its Subsidiaries constituting a significant portion of understandings with any person (other than the consolidated assets of the Company and its Subsidiaries; (iii) advise, encourage, support or influence any Person (except the BoardCompany) with respect to any of the foregoing; . If, at any time during the Standstill Period, Teece or any of his affiliates or representatives is approached by any person regarding a transaction involving any of the Company’s assets (iv) initiate, or in any way participate, directly or indirectly, in any “solicitation” of “proxies” to vote (as such terms are used other than in the rules ordinary course of the SEC)business, consistent with past practices) or seek to advise businesses or influence any Person or entity voting stock (other than with respect to brokerage or trading transactions by a securities dealer), then Teece must promptly notify the voting of any Voting Securities Company of the Company, or form, join or in any way participate in a group for the purpose of the voting of any Voting Securities of the Company (other than as contemplated hereunder or under the Shareholders Agreement); or (v) publicly request the Company or Board amend or waive any provision of this paragraph (including this sentence), or contest the validity of this paragraph (including this sentence); provided, that nothing in the preceding clauses shall (A) restrict the Investor from making a private, non-public, proposal to the Board for any nature of such matters, (B) apply to any “beneficial ownership” of Securities acquired or deemed to be acquired by virtue of any of transaction and the arrangements expressly contemplated under the Transaction Documents, including any voting agreements contemplated under the Shareholders Agreement, or (C) in any way be deemed to require any Investor Director to take (or omitting to take) any actions in a manner he or she reasonably believes would be inconsistent with the fiduciary duties of the Directors under applicable Law (or obligate the Investor to cause any Investor Director to act or omit to act in a manner in which such Investor Director reasonably believes would be inconsistent with the fiduciary duties of the Directors under applicable Law). In addition to any other available remedies, the Investor, Founders or any of their Affiliates, successors or permitted assigns shall not have the right to vote or grant consents with respect to any Securities acquired in violation of this Section 6.4(i) and agrees to promptly sell any such Securities and shall be restrained from voting or granting consents with respect to all of its Securities at any annual or special meeting of the stockholders of the Company, however called, or in connection with any action by written consent in lieu of any such annual or special meeting of stockholders of the Company in violation of this Section 6.4(iv) and any decision, action or transaction by such Person made or effected in violation of this Section 6.4(iv) shall be null and void ab initio. Notwithstanding the foregoing, if following any Permitted Purchase made by the Founders, the Investor and its Affiliates and their respective transferees no longer hold, in the aggregate, the largest number of shares of Common Stock of the Company (assuming the conversion of Series B Preferred Stock into Common Stock, and with the Founders deemed as one single shareholder for the purpose of such determination), the Investor shall have the right to purchase such number of shares of Common Stock or other Securities so as to enable the Investor and its Affiliates and their respective transferees to become the holders, in the aggregate, of the largest number of shares of Common Stock of the Company (assuming the conversion of Series B Preferred Stock into Common Stock, and with the Founders deemed as one single shareholder for the purpose of such determination), any such purchases shall not be deemed to violate the provision of this Section 6.4parties thereto.
Appears in 1 contract
Samples: Employment Agreement (Teece David J)
Standstill Agreement. For a period commencing with the date of this Agreement and ending on the earlier of (a) three (3) years following Each Investor agrees that, without the prior written approval of the Company, until the date that is twelve months from the Closing Date, neither the Investor nor any of its Affiliates will, directly or indirectly, except as set forth on Schedule 7.8(a): (a) acquire or make any proposal to acquire any securities or property of the Company, (b) the date when the Investor exercises the Warrant in full, propose to enter into any merger or (c) the occurrence of a Significant Event, other than a Permitted Purchase or with the consent of at least seventy-five percent (75%) of the members of the Board, each of the Investor and Founders agree not to, and to cause their respective Affiliates not to, (i) acquire, offer to acquire, or agree to acquire, by purchase or otherwise, any Securities (or beneficial ownership thereof), or rights or options to acquire any Securities (or beneficial ownership thereof), or any assets or businesses of business combination involving the Company or its Subsidiaries constituting purchase a significant material portion of the consolidated assets of the Company and its Subsidiaries; (ii) make any public announcement with respect to, or submit a proposal for or offer of (with or without conditions), any merger, consolidation, tender or exchange offer, amalgamation, scheme of arrangement, recapitalization, reorganization, liquidation, dissolution, business combination, issuance or repurchase of Securities (including any tender offer) or other extraordinary transaction involving the Company, any of the assets of the Company Company, (c) make or its Subsidiaries constituting a significant portion of the consolidated assets of the Company and its Subsidiaries; (iii) advise, encourage, support or influence any Person (except the Board) with respect to any of the foregoing; (iv) initiate, or participate in any way participate, directly or indirectly, in any “solicitation” solicitation of “proxies” proxies to vote (as such terms are used in the rules of the SEC)vote, or seek to advise or influence any Person or entity person with respect to the voting of any Voting Securities securities of the Company, or (d) form, join or in any way participate in a group for “group” (within the purpose meaning of Section 13(d)(3) of the Securities Exchange Act of 1934, as amended) with respect to any voting of any Voting Securities securities of the Company Company, (other than as contemplated hereunder e) otherwise act or under seek to control or influence the Shareholders Agreement); management, board of directors, or policies of the Company, (f) disclose any intention, plan, or arrangement inconsistent with the foregoing, or (vg) publicly take any action which might require the Company to make a public announcement regarding the possibility of a business combination, merger, acquisition of securities or assets, or any other similar transaction.
(b) Except as provided above, each Investor also agrees during such period not to request the Company or Board to amend or waive any provision of this paragraph (including this sentence), or bring any action or otherwise act to contest the validity of this paragraph (including Section 7.8 or seek a release of the restrictions contained herein, or make a request to amend or waive any provision of this sentence)Section 7.8; provided, that nothing (i) Section 7.8(a) shall not apply to any investment activity related to employee benefit or retirement plans conducted in the preceding clauses shall ordinary course of business by any portfolio company with respect to which such Investor is not the party exercising control over either the day to day operations of such portfolio company or the decision to purchase securities; provided that such Investor does not (A) restrict the Investor from making a private, directly or indirectly provide or make available to such entity any non-public, proposal to public information concerning the Board for any Company and such portfolio company is not acting at the request or direction of or in coordination with such matters, Investor or (B) apply cause such portfolio company or its directors, officers, managers, members or other representatives to take any “beneficial ownership” of Securities acquired action that Investor would be prohibited from doing hereby; and (ii) nothing in this Section 7.8 shall prevent the Investor or deemed to be acquired its Affiliates from voting any securities beneficially owned by virtue of any of the arrangements expressly contemplated under the Transaction Documents, including any voting agreements contemplated under the Shareholders Agreement, Investor or (C) its Affiliates in any way be deemed to require any Investor Director to take (or omitting to take) any actions in a manner he or she reasonably believes would be inconsistent with the fiduciary duties of the Directors under applicable Law (or obligate the Investor to cause any Investor Director to act or omit to act in a manner in which such Investor Director reasonably believes would be inconsistent with the fiduciary duties of the Directors under applicable Law). In addition to any other available remedies, the Investor, Founders or any of their Affiliates, successors or permitted assigns shall not have the right to vote or grant consents with respect to any Securities acquired in violation of this Section 6.4(i) and agrees to promptly sell any such Securities and shall be restrained from voting or granting consents with respect to all of its Securities at any annual or special meeting of the stockholders of the Company, however called, or in connection with any action by written consent in lieu of any such annual or special meeting of stockholders of the Company in violation of this Section 6.4(iv) and any decision, action or transaction by such Person made or effected in violation of this Section 6.4(iv) shall be null and void ab initio. Notwithstanding the foregoing, if following any Permitted Purchase made by the Founders, the Investor and its Affiliates and their respective transferees no longer hold, in the aggregate, the largest number of shares of Common Stock of the Company (assuming the conversion of Series B Preferred Stock into Common Stock, and with the Founders deemed as one single shareholder for the purpose of such determination), the Investor shall have the right to purchase such number of shares of Common Stock or other Securities so as to enable the Investor and its Affiliates and their respective transferees to become the holders, in the aggregate, of the largest number of shares of Common Stock of the Company (assuming the conversion of Series B Preferred Stock into Common Stock, and with the Founders deemed as one single shareholder for the purpose of such determination), any such purchases shall not be deemed to violate the provision of this Section 6.4manner.
Appears in 1 contract
Standstill Agreement. For a period commencing with the date of this Agreement and ending on the earlier of (a) three (3) years following The Investor agrees that, from and after Closing, without the Closing Dateprior written approval of the Company, (b) the date when neither the Investor exercises the Warrant in fullnor any of its Affiliates will, directly or (c) the occurrence of a Significant Event, other than a Permitted Purchase or with the consent of at least seventy-five percent (75%) of the members of the Board, each of the Investor and Founders agree not to, and to cause their respective Affiliates not to, indirectly:
(i) acquirepurchase, offer to acquire, or agree to acquirepurchase, by purchase or otherwiseotherwise acquire beneficial ownership of, any Equity Securities (or beneficial ownership thereofas hereinafter defined), debt securities or rights all or options to acquire any Securities (or beneficial ownership thereof), or any assets or businesses of the Company or its Subsidiaries constituting a significant portion of the consolidated assets of the Company and its Subsidiaries; (ii) make any public announcement with respect to, or submit a proposal for or offer of (with or without conditions), any merger, consolidation, tender or exchange offer, amalgamation, scheme of arrangement, recapitalization, reorganization, liquidation, dissolution, business combination, issuance or repurchase of Securities (including any tender offer) or other extraordinary transaction involving the Company, any substantially all of the assets of the Company or its Subsidiaries constituting a significant portion Company, other than pursuant to the exercise of the consolidated assets of the Company and its Subsidiaries; Investor’s rights under Section 4.5;
(iiiii) advise, encourage, support or influence any Person (except the BoardA) with respect to any of the foregoing; (iv) initiate, make or in any way participate, directly or indirectly, participate in any “solicitation” solicitation of “proxies” proxies to vote (as such terms are used in the rules of the SEC)vote, or seek to advise or influence any Person or entity person with respect to the voting of, any Voting Shares or other securities of the Company or any of its Subsidiaries, (B) seek or propose to influence, advise, change or control the management, Board of Directors, policies, affairs or strategy of the Company or any of its Subsidiaries, in each case by way of any Voting Securities public communication intended for such purpose (it being understood that this clause (B) shall not prohibit the Investor from complying with its fiduciary and contractual obligations or exercising its rights under Section 4.3 or any Board Representative from performing his or her duties as a director of the Company), (C) make or encourage others to make a proposal for any transaction which would result in a Change of Control (as defined below) or (D) take any action to form, join or in any way participate in any partnership, syndicate or other group (as defined in Rule 13d-5(b)(1) under the Exchange Act, as in effect on the date hereof) with respect to Equity Securities or debt securities with a group view to circumventing the provisions of this Section 4.1 or otherwise act in concert with any person for the purpose of circumventing the provisions of this Agreement;
(iii) deposit any Equity Securities in a voting trust or similar agreement or subject any Equity Securities to any arrangement or agreement with respect to the voting of such Equity Securities, in each case with a view to circumventing the restrictions imposed on the Investor under Section 4.1; provided, however, that this Section 4.1(a)(iii) shall not prohibit any Voting Securities such arrangement solely among the Investor and any of the controlled Affiliates of One Equity Holding Corporation;
(iv) propose (or publicly announce or otherwise disclose an intention to propose), solicit, offer, seek to effect, negotiate with or provide any confidential information relating to the Company (or its business to any other than as contemplated hereunder person with respect to, any tender or under exchange offer, merger, consolidation, share exchange, business combination, restructuring, recapitalization or similar transaction involving the Shareholders Agreement)Company; or provided, that nothing set forth in this Section 4.1(a)(iv) shall prohibit the Investor from soliciting, offering, seeking to effect and negotiating with any person with respect to Transfers of Equity Securities otherwise permitted by this Article IV;
(v) publicly or privately make or in any way advance any request the Company or Board amend proposal to amend, modify or waive any provision of this paragraph Agreement; or
(including this sentence)vi) announce an intention to do, or contest the validity of this paragraph (including this sentence); providedsolicit, that nothing in the preceding clauses shall (A) restrict the Investor from making a privateassist, non-publicprompt, proposal induce or attempt to the Board for induce any of such mattersperson to do, (B) apply to any “beneficial ownership” of Securities acquired or deemed to be acquired by virtue of any of the arrangements expressly contemplated actions restricted or prohibited under the Transaction Documents, including any voting agreements contemplated under the Shareholders subparagraphs (a)(i) through (v) above.
(b) Notwithstanding anything in this Agreement, the foregoing provisions of Section 4.1(a) shall not prohibit activities of any Subsidiaries or Affiliates of OEP in the ordinary course of their respective businesses which would otherwise violate the provisions of Section 4.1(a) (C“permitted activities”) provided that (i) appropriate “information barriers” are established between individuals who are working on behalf of OEP and its Representatives to whom confidential information regarding the Company is disclosed hereunder and those individuals who engage in any way be deemed permitted activities which will prevent confidential information regarding the Company from being disclosed to require any Investor Director to take such individuals, (or omitting to takeii) any actions such permitted activities are conducted only in a manner he or she reasonably believes would be inconsistent accordance with the fiduciary duties policies and procedures governing such information barriers and with applicable law, (iii) the individuals engaging in permitted activities are not acting at the direction of the Directors under applicable Law (or obligate the Investor to cause any Investor Director to act or omit to act in a manner in which such Investor Director reasonably believes would be inconsistent with the fiduciary duties of the Directors under applicable Law). In addition to any other available remedies, the Investor, Founders OEP or any of their Affiliates, successors or permitted assigns shall not have the right its Representatives to vote or grant consents with respect to any Securities acquired in violation of this Section 6.4(i) and agrees to promptly sell any such Securities and shall be restrained from voting or granting consents with respect to all of its Securities at any annual or special meeting of the stockholders of the Company, however called, or in connection with any action by written consent in lieu of any such annual or special meeting of stockholders of whom confidential information regarding the Company in violation has been disclosed hereunder and (iv) such activities are not undertaken with a view to circumventing the provisions of this Section 6.4(iv4.1.
(c) and any decision, action or transaction by such Person made or effected in violation of this Section 6.4(ivThe Investor’s obligations under Sections 4.1(a) shall be null and void ab initio. Notwithstanding terminate on the foregoing, if following any Permitted Purchase made by earliest of (a “Standstill Termination Date”): (i) the Founders, date on which the Investor and its Affiliates beneficially own less than 10% of the issued and outstanding Voting Shares; (ii) the date on which the Company’s Board of Directors (x) publicly recommends that shareholders tender their respective transferees no longer holdshares to any person who has publicly announced or commenced a tender or exchange offer which, if consummated, would result in a Change of Control, or (y) fails to recommend that shareholders reject such an offer within ten (10) business days after its public announcement (including a public filing) or commencement or otherwise fails to make a “stop-look-and-listen” communication to the aggregate, the largest number of shares of Common Stock stockholders of the Company within such time period; (assuming iii) the conversion public announcement (including a public filing) by the Company that it is “for sale” in a transaction, or that it recommends a proposed transaction, that would result in a Change of Series B Preferred Stock into Common StockControl; (iv) the execution by the Company of a definitive agreement which, if consummated, would result in a Change of Control; (v) the public announcement (including a public filing) by or on behalf of any person (other than Investor and with its Affiliates) or “group”, as such term is defined in Section 13(d)(3) of the Founders deemed as one single shareholder for Exchange Act (other than any group that includes Investor or any of its Affiliates) of the purpose commencement of a bona fide proxy or consent solicitation to elect or remove a majority of the Board of Directors which is not, within ten (10) days after the announcement of such determination)proxy or consent solicitation, publicly opposed by the Board of Directors; (vi) failure of any individual who is duly designated by the Investor shall have and duly qualified to serve as a Board Representative on the right Board of Directors as provided in Section 4.3 to purchase such number become a member of shares the Board of Directors which failure results from a breach by the Company of its obligations under Section 4.3; or (vii) the date the Common Stock ceases to trade on NASDAQ. A “Change of Control” shall be deemed to have occurred (i) if any person or group (other Securities so as to enable than the Investor and its Affiliates and their respective transferees to become the holders, in the aggregate, Affiliates) shall acquire beneficial ownership of more than 50% of the largest number Voting Shares issued and outstanding (it being understood, for removal of shares doubt, that the transactions contemplated hereby and by the Institutional Investors’ Purchase Agreement do not, by themselves, constitute a Change of Common Stock Control), (ii) upon consummation of a merger or consolidation of the Company into or with another person (assuming other than the conversion Investor and its Affiliates) in which the shareholders of Series B Preferred Stock into Common Stock, and with the Founders deemed as one single shareholder for Company immediately prior to the purpose consummation of such determination)transaction shall own less than 50% of the voting securities of the surviving person (or the parent of the surviving person where the surviving person is wholly owned by the parent person) immediately following the consummation of such transaction, any such purchases shall or (iii) upon the consummation of the sale, transfer or lease (but not be deemed including a transfer or lease by pledge or mortgage to violate a bona fide lender) of all or substantially all of the provision assets of this Section 6.4the Company to another person other than a Company Subsidiary.
Appears in 1 contract
Samples: Investment Agreement (X Rite Inc)
Standstill Agreement. For a period commencing with the date of Except as expressly provided in this Agreement or as otherwise requested or consented to by the Company or required by Applicable Law, the Stockholder covenants and ending on agrees that, from and after the earlier of (a) three (3) years following Effective Time until the Closing Termination Date, (b) each such party shall not, and shall cause each controlled Affiliate of the date when the Investor exercises the Warrant in fullStockholder not to, singly or (c) the occurrence as part of a Significant Eventpartnership, limited partnership, syndicate or other than a Permitted Purchase or with the consent of at least seventy-five percent group (75%as those terms are defined in Section 13(d)(3) of the members of the BoardExchange Act), each of the Investor and Founders agree not to, and to cause their respective Affiliates not to, directly or indirectly:
(ia) acquire, offer to acquire, or agree to acquire, by purchase purchase, gift or otherwise, directly or indirectly, the beneficial ownership of any Securities additional equity securities of the Company (or beneficial ownership thereof)any warrants, options, or other rights to purchase or options to acquire any Securities (or beneficial ownership thereof)acquire, or any assets securities convertible into, or businesses exchangeable for, any equity securities of the Company or its Subsidiaries constituting a significant portion Company) that has the effect of increasing the Beneficial Ownership of the consolidated assets Stockholder of Common Stock on a percentage basis in the Company and its Subsidiaries; outstanding Common Stock above ten percent (ii10%) make any public announcement with respect toat the time of such transaction, or submit except pursuant to a proposal for or offer of (with or without conditions)stock split, any mergerstock dividend, consolidation, tender or exchange offer, amalgamation, scheme of arrangementrights offering, recapitalization, reorganization, liquidation, dissolution, business combination, reclassification or similar transaction or grant or issuance or repurchase of Securities (including any tender offer) or other extraordinary transaction involving the Company, any of the assets of the Company or its Subsidiaries constituting a significant portion of the consolidated assets of the Company and its Subsidiaries; (iii) advise, encourage, support or influence any Person (except approved by the Board;
(b) with respect to any of the foregoing; (iv) initiatemake, or in any way participate, directly or indirectly, in any “solicitation” of “proxies” to vote (as such terms are used defined in Rule 14a-1 under the rules of the SECExchange Act), solicit any consent or communicate with or seek to advise or influence any Person person or entity with respect to the voting of any Voting Securities securities of the Company, or to become a “participant” in any “election contest” (as such terms are defined in the Exchange Act) with respect to the Company;
(c) form, join join, encourage or in any way participate in a group for the purpose formation of, any “person” or “group” within the meaning of Section 13(d)(3) of the voting of any Voting Securities of the Company (other than as contemplated hereunder or under the Shareholders Agreement); or (v) publicly request the Company or Board amend or waive any provision of this paragraph (including this sentence), or contest the validity of this paragraph (including this sentence); provided, that nothing in the preceding clauses shall (A) restrict the Investor from making a private, non-public, proposal to the Board for any of such matters, (B) apply to any “beneficial ownership” of Securities acquired or deemed to be acquired by virtue of any of the arrangements expressly contemplated under the Transaction Documents, including any voting agreements contemplated under the Shareholders Agreement, or (C) in any way be deemed to require any Investor Director to take (or omitting to take) any actions in a manner he or she reasonably believes would be inconsistent with the fiduciary duties of the Directors under applicable Law (or obligate the Investor to cause any Investor Director to act or omit to act in a manner in which such Investor Director reasonably believes would be inconsistent with the fiduciary duties of the Directors under applicable Law). In addition to any other available remedies, the Investor, Founders or any of their Affiliates, successors or permitted assigns shall not have the right to vote or grant consents Exchange Act with respect to any Securities acquired in violation of this Section 6.4(iCommon Stock;
(d) and agrees grant or agree to promptly sell grant any such Securities and shall be restrained from proxy or other voting power to any Person other than the Company or granting consents with respect other Persons designated by the Company to all of its Securities vote at any annual or special meeting of the stockholders of the Company, however calledor deposit any Consideration Shares into a voting trust or subject any Consideration Shares to any arrangement or agreement with respect to the voting thereof;
(e) initiate or propose or otherwise solicit shareholders for the approval of one or more shareholder proposals with respect to the Company as described in Rule 14a-8 under the Exchange Act or otherwise, or in connection with induce or attempt to induce directly or indirectly any action by written consent in lieu other person to initiate any shareholder proposal;
(f) seek election to or seek to place a representative on the Board or seek removal of any such annual member of the Board or special otherwise act, alone or in concert with others, to seek representation on or to control or influence the management, the Board or policies of the Company;
(g) seek to have called any meeting of stockholders the shareholders of the Company in violation Company;
(h) seek, offer or propose to effect (with or without conditions), or make any public announcement or proposal whatsoever with respect to, any form of this Section 6.4(iv) and any decision, action or business combination transaction by such Person made or effected in violation of this Section 6.4(iv) shall be null and void ab initio. Notwithstanding the foregoing, if following any Permitted Purchase made by the Founders, the Investor and its Affiliates and their respective transferees no longer hold, in the aggregate, the largest number of shares of Common Stock of involving the Company (assuming other than the conversion of Series B Preferred Stock into Common Stock, and with transactions contemplated by the Founders deemed as one single shareholder for the purpose of such determinationBusiness Combination Agreement), including, without limitation, a merger, exchange offer, or sale or liquidation of the Investor shall Company’s assets, or any restructuring, recapitalization or similar transaction with respect to the Company;
(i) seek publicly to have the right Company waive, amend or modify any of the provisions contained in this Section 4;
(j) take any action which would or would reasonably be expected to purchase such number force the Company to make a public announcement regarding any of shares the types of matters set forth in (a) - (i) above;
(k) publicly disclose or announce any intention, plan or arrangement to do any of the foregoing; or
(l) advise, assist, instigate or encourage any third party to do any of the foregoing; provided, however, that this Section 4 shall not prohibit or restrict the exercise by any Stockholder of his, her or its voting rights with regard to Common Stock to the extent contemplated by Section 2. Notwithstanding anything to the contrary in this Agreement, this Agreement shall not restrict or other Securities so as to enable prohibit the Investor and Stockholder nor any of its Affiliates and from exercising or enforcing their respective transferees to become rights under the holders, Business Combination Agreement or any Related Agreement (as defined in the aggregate, of the largest number of shares of Common Stock of the Company (assuming the conversion of Series B Preferred Stock into Common Stock, and with the Founders deemed as one single shareholder for the purpose of such determinationBusiness Combination Agreement), any such purchases shall not be deemed to violate the provision of this Section 6.4.
Appears in 1 contract
Samples: Stockholders Voting Agreement (HeartWare International, Inc.)
Standstill Agreement. For a period commencing with the date of this Agreement and ending on the earlier of (a) three (3) years following For so long as the Closing DateClass A Shares are held by Seaside or its affiliates, (b) the date when the Investor exercises the Warrant Seaside will not, alone or in fullconcert with others, directly or (c) the occurrence of a Significant Event, other than a Permitted Purchase or with the consent of at least seventy-five percent (75%) of the members of the Board, each of the Investor and Founders agree not to, and to cause their respective Affiliates not to, indirectly: (i) acquireby purchase or otherwise, offer to acquire, or agree to acquire, by purchase ownership (including, but not limited to, beneficial ownership) of any Class A Shares or otherwise, any Securities direct or indirect rights (or beneficial ownership thereof), or rights including convertible securities) or options to acquire any Securities (or beneficial ownership thereof), or any assets or businesses of the Company or its Subsidiaries constituting a significant portion of the consolidated assets of the Company and its Subsidiariessuch ownership; (ii) make any public announcement with respect to, or submit a any proposal for, the acquisition of beneficial ownership of Class A Shares (or direct or indirect rights, including convertible securities, or options to acquire such beneficial ownership) for or offer of (with respect to any extraordinary transaction or without conditions), any merger, consolidation, tender sale of substantial assets or exchange offer, amalgamation, scheme of arrangement, recapitalization, reorganization, liquidation, dissolution, business combination, issuance or repurchase of Securities (including any tender offer) or other extraordinary transaction combination involving the Company, any of the assets of the Company or any of its Subsidiaries constituting affiliates, whether or not any parties other than Seaside or its affiliates and associates are involved and whether or not such proposal might require the making of a significant portion of the consolidated assets of the Company and its Subsidiariespublic announcement; (iii) advise, encourage, support or influence any Person (except the Board) with respect to any of the foregoing; (iv) initiatemake, or in any way participateparticipate in, directly or indirectly, in any “"solicitation” " of “"proxies” to vote " (as such terms are defined or used in Regulation 14A under the rules of Exchange Act) or become a "participant" in any "election contest" (as such terms are defined or used in Rule 14a-11 under the SEC)Exchange Act) to vote, or seek to advise or influence any Person person or entity with respect to the voting of, any voting securities of the Company or any Voting Securities of its affiliates; provided, however, that the foregoing shall not restrict any actions with respect to matters (other than matters relating to the election of directors or the composition of the Company, 's Board of Directors) submitted to a shareholder vote which matters are not proposed or initiated by Seaside or its affiliates or associates or by any person acting in concert with or at the direction of Seaside or its affiliates or associates; (iv) form, join or in any way participate in a group for the purpose "group" (as such term is used in Section 13d(3) of the voting of any Voting Securities of the Company (other than as contemplated hereunder or under the Shareholders Agreement); or (vExchange Act) publicly request the Company or Board amend or waive any provision of this paragraph (including this sentence), or contest the validity of this paragraph (including this sentence); provided, that nothing in the preceding clauses shall (A) restrict the Investor from making a private, non-public, proposal to the Board for any of such matters, (B) apply to any “beneficial ownership” of Securities acquired or deemed to be acquired by virtue of any of the arrangements expressly contemplated under the Transaction Documents, including any voting agreements contemplated under the Shareholders Agreement, or (C) in any way be deemed to require any Investor Director to take (or omitting to take) any actions in a manner he or she reasonably believes would be inconsistent with the fiduciary duties of the Directors under applicable Law (or obligate the Investor to cause any Investor Director to act or omit to act in a manner in which such Investor Director reasonably believes would be inconsistent with the fiduciary duties of the Directors under applicable Law). In addition to any other available remedies, the Investor, Founders or any of their Affiliates, successors or permitted assigns shall not have the right to vote or grant consents with respect to any Securities acquired in violation of this Section 6.4(i) and agrees to promptly sell any such Securities and shall be restrained from voting or granting consents with respect to all of its Securities at any annual or special meeting securities of the stockholders of the Company, however called, or Company in connection with any action or matter otherwise prohibited by written consent in lieu the terms of this agreement; (v) initiate or propose any such annual shareholder proposals for submission to a vote of shareholders with respect to the Company or special meeting any of stockholders its affiliates or propose any person for election to the Board of Directors of the Company in violation or any of this Section 6.4(ivits affiliates; or (vi) and any decision, action otherwise seek to control the management or transaction by such Person made or effected in violation of this Section 6.4(iv) shall be null and void ab initio. Notwithstanding the foregoing, if following any Permitted Purchase made by the Founders, the Investor and its Affiliates and their respective transferees no longer hold, in the aggregate, the largest number of shares of Common Stock policies of the Company (assuming or any of its affiliates, including, without limitation, taking any action to seek to obtain representation on the conversion Board of Series B Preferred Stock into Common Stock, and with the Founders deemed as one single shareholder for the purpose of such determination), the Investor shall have the right to purchase such number of shares of Common Stock or other Securities so as to enable the Investor and its Affiliates and their respective transferees to become the holders, in the aggregate, of the largest number of shares of Common Stock Directors of the Company or any of its affiliates.
(assuming b) So long as the conversion Class A Shares are held by Seaside or its affiliates, Seaside and its affiliates will vote the Class A Shares delivered pursuant to this Agreement in support of Series B Preferred Stock into Common Stock, and with the Founders deemed as one single shareholder for election of the purpose nominees to the Company's Board of Directors proposed by either the current Board of Directors or the members of the Board of Directors who have been nominated to the Board by the current Board of Directors (or such determinationof their successors who have been nominated by the Board members so nominated), any such purchases shall not be deemed to violate the provision of this Section 6.4.
Appears in 1 contract
Samples: Conversion Agreement (Interiors Inc)
Standstill Agreement. For a period commencing with the date of this Agreement and ending on the earlier of (a) three (3) years following Except as specifically permitted or required by this Restricted Stock Unit Award, the Closing DateGrantee will not, (b) directly or indirectly, without the date when the Investor exercises the Warrant in full, or (c) the occurrence of a Significant Event, other than a Permitted Purchase or with the consent of at least seventy-five percent (75%) prior approval of the members Company’s board of directors (the “Company Board, each of the Investor and Founders agree not to, and to cause their respective Affiliates not to, ”),
(i) acquireacquire (or offer, offer to acquire, propose or agree to acquire, by purchase or otherwise, ) any Securities (or beneficial ownership thereof), or rights or options to acquire any Securities (or beneficial ownership thereof), or any assets or businesses shares of common stock of the Company or (“Common Stock”) by any means whatsoever (including pursuant to this Restrcited Stock Unit Award) if the total number of shares of Common Stock then beneficially owned by the Grantee and its Subsidiaries constituting a significant portion Affiliates and any other persons whose beneficial ownership of Common Stock would be aggregated with the Grantee’s for purposes of Section 13(d) of the consolidated assets Exchange Act, does not exceed 4.999% of the Company total number of issued and its Subsidiaries; outstanding shares of Common Stock (including for such purpose the shares of Common Stock issuable upon any conversion or exercise of another security including a warrant). For these purposes, beneficial ownership shall be determined in accordance with Section 13(d) of the Exchange Act and the rules and regulations promulgated thereunder;
(ii) make any public announcement with respect toengage, or submit become a proposal for or offer of (with or without conditions), any merger, consolidation, tender or exchange offer, amalgamation, scheme of arrangement, recapitalization, reorganization, liquidation, dissolution, business combination, issuance or repurchase of Securities (including any tender offer) or other extraordinary transaction involving the Company, any of the assets of the Company or its Subsidiaries constituting a significant portion of the consolidated assets of the Company and its Subsidiaries; (iii) advise, encourage, support or influence any Person (except the Board) with respect to any of the foregoing; (iv) initiate, or in any way participate, directly or indirectlyparticipant, in any “solicitation” of “proxies” to vote (as such terms are used defined in Regulation 14A under the rules Exchange Act) or consents to vote any shares of Common Stock;
(iii) grant a proxy or otherwise transfer the right to vote any shares of Common Stock, other than to the Company’s designee(s) pursuant to a proxy solicitation conducted by or on behalf of the SEC), Company Board;
(iv) act or seek to advise control or influence any Person the management, the Company Board or entity with respect to the voting of any Voting Securities of the Company, or form, join or in any way participate in a group for the purpose of the voting of any Voting Securities policies of the Company (including by seeking to call a shareholders meeting, proposing or nominating any person for election to the Company’s Board, submitting a proposal for action at a shareholders meeting or by consent of the shareholders in lieu of a meeting, proposing a merger, statutory share exchange or other than as contemplated hereunder business combination or under the Shareholders Agreementextraordinary corporate transaction, or otherwise); or ;
(v) publicly request the Company disclose any intention, plan or Board amend or waive any provision of this paragraph (including this sentence), or contest the validity of this paragraph (including this sentence); provided, that nothing in the preceding clauses shall (A) restrict the Investor from making a private, non-public, proposal to the Board for any of such matters, (B) apply to any “beneficial ownership” of Securities acquired or deemed to be acquired by virtue of any of the arrangements expressly contemplated under the Transaction Documents, including any voting agreements contemplated under the Shareholders Agreement, or (C) in any way be deemed to require any Investor Director to take (or omitting to take) any actions in a manner he or she reasonably believes would be arrangement inconsistent with the fiduciary duties of the Directors under applicable Law foregoing; or
(vi) advise, assist or obligate the Investor to cause any Investor Director to act or omit to act in a manner in which such Investor Director reasonably believes would be inconsistent with the fiduciary duties of the Directors under applicable Law). In addition to encourage any other available remedies, the Investor, Founders or any of their Affiliates, successors or permitted assigns shall not have the right to vote or grant consents with respect to any Securities acquired in violation of this Section 6.4(i) and agrees to promptly sell any such Securities and shall be restrained from voting or granting consents with respect to all of its Securities at any annual or special meeting of the stockholders of the Company, however called, or persons in connection with any action by written consent in lieu of any such annual or special meeting of stockholders of the Company in violation foregoing or to do any of the foregoing.
(b) The obligations of the Grantee under this Section 6.4(ivshall terminate in the event (i) any bona fide third party tender or exchange offer is publicly announced and commenced by any person other than the Grantee or an affiliate of the Grantee and any decision, action or transaction by such Person made or effected in violation other persons whose beneficial ownership of this Common Stock would be aggregated with the Grantee’s for purposes of Section 6.4(iv13(d) shall be null and void ab initio. Notwithstanding of the foregoing, if following any Permitted Purchase made by Exchange Act for at least 50% of the Founders, the Investor and its Affiliates and their respective transferees no longer hold, in the aggregate, the largest number of outstanding shares of Common Stock that is conditioned upon the offeror receiving tenders for at least 50% of the Company (assuming the conversion outstanding shares of Series B Preferred Stock into Common Stock, and or (ii) the Company enters into any agreement to merge or enter into a statutory share exchange with any person other than the Grantee or an affiliate of the Grantee or any other persons whose beneficial ownership of Common Stock would be aggregated with the Founders deemed Grantee’s for purposes of Section 13(d) of the Exchange Act following the closing of which the Common Stock would cease to be registered under the Exchange Act. All of the provisions of this Section shall be reinstated and shall apply in full force according to their terms in the event that: (A) if the provisions of Section 16(a) shall have terminated as one single shareholder for the purpose result of clause (i), and such determinationtender or exchange offer (as originally made or as amended or modified) shall have terminated without acquisition by the offeror of at least 50% of the outstanding shares of Common Stock; or (B) if the provisions of Section 16(a) shall have terminated as a result of clause (ii), such merger or share exchange agreement shall have been terminated prior to its closing. Upon reinstatement of the provisions of Section 16(a), the Investor shall have the right to purchase such number of shares of Common Stock or other Securities so as to enable the Investor and its Affiliates and their respective transferees to become the holders, in the aggregate, of the largest number of shares of Common Stock of the Company (assuming the conversion of Series B Preferred Stock into Common Stock, and with the Founders deemed as one single shareholder for the purpose of such determination), any such purchases shall not be deemed to violate the provision provisions of this Section 6.416(b) shall continue to govern in the event that any of the events described in this Section 16(b) shall subsequently occur.
Appears in 1 contract
Samples: Restricted Stock Unit Award Agreement (EVINE Live Inc.)
Standstill Agreement. For a period commencing with the date of this Agreement and ending on the earlier of (a) three (3) years following Until the Closing Termination Date, (b) the date when the Investor exercises the Warrant in fullEngaged Group shall not, or (c) the occurrence of a Significant Event, other than a Permitted Purchase or with the consent of at least seventy-five percent (75%) of the members of the Board, and shall cause each of the Investor its Affiliates and Founders agree Associates not to, and to cause their respective Affiliates not to, (i) acquire, offer to acquire, or agree to acquire, by purchase or otherwise, any Securities (or beneficial ownership thereof), or rights or options to acquire any Securities (or beneficial ownership thereof), or any assets or businesses of the Company or its Subsidiaries constituting a significant portion of the consolidated assets of the Company and its Subsidiaries; (ii) make any public announcement with respect to, or submit a proposal for or offer of (with or without conditions), any merger, consolidation, tender or exchange offer, amalgamation, scheme of arrangement, recapitalization, reorganization, liquidation, dissolution, business combination, issuance or repurchase of Securities (including any tender offer) or other extraordinary transaction involving the Company, any of the assets of the Company or its Subsidiaries constituting a significant portion of the consolidated assets of the Company and its Subsidiaries; (iii) advise, encourage, support or influence any Person (except the Board) with respect to any of the foregoing; (iv) initiate, or in any way participate, directly or indirectly, in any manner, alone or in concert with others:
(i) (A) acquire, cause to be acquired, or offer, seek or agree to acquire, whether by purchase, tender or exchange offer, through the acquisition of control of another person, by joining or forming a partnership, limited partnership, syndicate or other group (including any group of persons that would be treated as a single “person” under Section 13(d) of the Exchange Act (as defined below)), through swap or hedging transactions or otherwise (the taking of any such action, an “Acquisition”), Beneficial Ownership of any securities or assets of the Company (or any direct or indirect rights or options to acquire such ownership, including voting rights decoupled from the underlying Voting Securities) such that after giving effect to any such Acquisition, the Engaged Group or any of its Affiliates and Associates holds, directly or indirectly, in excess of 12.0% of the Voting Securities, (B) acquire, cause to be acquired or offer, seek or agree to acquire, whether by purchase or otherwise, any interest in any indebtedness of the Company, or (C) acquire, cause to be acquired or offer, seek or agree to acquire, ownership of any asset or business of the Company or any right or option to acquire any such asset or business from any person;
(ii) (A) nominate, give notice of an intent to nominate, or recommend for nomination a person for election to the Board or take any action in respect of the removal of any director (in each case other than pursuant to Section 1), (B) seek or knowingly encourage any person to submit any nomination in furtherance of a “contested solicitation” or take any other action in respect of the election or removal of any director (in each case other than pursuant to Section 1), (C) submit, or seek or knowingly encourage the submission of, any stockholder proposal (pursuant to Rule 14a-8 under the Exchange Act or otherwise) for consideration at, or bring any other business before, any Stockholder Meeting, (D) request, or knowingly initiate, encourage or participate in any request, to call a Stockholder Meeting, (E) publicly seek to amend any provision of the Charter, Third Amended and Restated By-Laws (the “By-Laws”) or other governing documents of the Company (each as may be amended from time to time) (in each case other than pursuant to Section 1) or (F) take any action similar to the foregoing with respect to any subsidiary of the Company; provided, however, that nothing in this Agreement shall prevent the Engaged Group or its Affiliates or Associates from taking actions in furtherance of identifying director candidates in connection with the 2022 Annual Meeting so long as such actions do not create a public disclosure obligation for the Engaged Group or the Company and are undertaken on a basis reasonably designed to be confidential and in accordance in all material respects with the Engaged Group’s normal practices in the circumstances;
(iii) solicit any proxy, consent or other authority to vote of stockholders or conduct any other referendum (binding or non-binding) (including any “withhold,” “vote no” or similar campaign) with respect to, or from the holders of, Voting Securities, or become a “participant” (as such term is defined in Instruction 3 to Item 4 of Schedule 14A promulgated under the Exchange Act) in, or knowingly assist, advise, initiate, encourage or influence any person (other than the Company) in, any “solicitation” of “proxies” any proxy, consent or other authority to vote any Voting Securities (as other than such terms are used assistance, advice, encouragement or influence that is consistent with the Board’s recommendation in connection with such matter);
(iv) (A) grant any proxy, consent or other authority to vote with respect to any matters (other than to the named proxies included in the rules Company’s proxy card for any Stockholder Meeting or as otherwise permitted by Section 1(e)(ii)) or (B) deposit or agree or propose to deposit any securities of the SEC)Company in any voting trust or similar arrangement, or seek subject any securities of the Company to advise any agreement or influence any Person or entity arrangement with respect to the voting of such securities (including a voting agreement or pooling arrangement), other than (I) any such voting trust or arrangement solely for the purpose of delivering to the Company or its designee a proxy, consent or other authority to vote in connection with a solicitation made by or on behalf of the Company or (II) customary brokerage accounts, margin accounts and prime brokerage accounts so long as a member of the Engaged Group retains the sole right to vote any such securities at any Stockholder Meeting;
(v) knowingly encourage, advise or influence any person or knowingly assist any person in so encouraging, advising or influencing any person, with respect to the giving or withholding of any proxy, consent or authority to vote any Voting Securities or in conducting any referendum (binding or non-binding) (including any “withhold,” “vote no,” or similar campaign);
(vi) without the prior written approval of the Company, separately or in conjunction with any other person in which it is or proposes to be either a principal, partner or financing source or is acting or proposes to act as broker or agent for compensation, propose, suggest or recommend publicly or in a manner that the Engaged Group is required under applicable law, rule or regulation to disclose publicly or participate in, effect or seek to effect any Extraordinary Transaction or knowingly encourage any other third party in any such activity; provided, that nothing in this Section 2(a)(vi) shall be interpreted to prohibit the Engaged Group from proposing, suggesting or recommending any Extraordinary Transaction privately to the Company so long as any such action is not publicly disclosed by the Engaged Group and is made by the Engaged Group in a manner that would not reasonably be expected to require the public disclosure thereof by the Company, the Engaged Group or any other person;
(vii) form, join join, encourage the formation of, or in any way participate in a any partnership, limited partnership, syndicate or group for (within the purpose meaning of Section 13(d)(3) of the voting of Exchange Act) with respect to any Voting Securities of the Company (other than a group that includes all or some of the members of the Engaged Group, but does not include any other entities or persons that are not members of the Engaged Group as contemplated hereunder or under of the Shareholders date hereof; provided that nothing herein shall limit the ability of an Affiliate of the Engaged Group to join such group following the execution of this Agreement, so long as any such Affiliate agrees to be bound by the terms and conditions of this Agreement); ;
(viii) make or (v) publicly advance any request the Company or Board amend proposal to amend, modify or waive any provision of this paragraph (including this sentence)Agreement, or contest take any action challenging the validity or enforceability of any provision of or obligation arising under this paragraph (including this sentence)Agreement; provided, provided that nothing in the preceding clauses shall (A) restrict the Investor from making a private, non-public, proposal Engaged Group may make confidential requests to the Board to amend, modify or waive any provision of this Agreement, which the Board may accept or reject in its sole and absolute discretion, so long as any such request is not publicly disclosed by the Engaged Group and is made by the Engaged Group in a manner that would not reasonably be expected to require the public disclosure thereof by the Company, the Engaged Group or any other person;
(ix) make a request for a list of the Company’s stockholders or for any books and records of such mattersthe Company pursuant to Section 220 of the DGCL; or
(x) enter into any discussion, (B) apply to any “beneficial ownership” of Securities acquired negotiation, agreement, arrangement or deemed to be acquired by virtue of understanding concerning any of the arrangements expressly contemplated under the Transaction Documentsforegoing (other than this Agreement) or encourage, including any voting agreements contemplated under the Shareholders Agreementassist, solicit, seek, or (C) in any way be deemed to require any Investor Director to take (or omitting to take) any actions in a manner he or she reasonably believes would be inconsistent with the fiduciary duties of the Directors under applicable Law (or obligate the Investor seek to cause any Investor Director person to act or omit to act in a manner in which such Investor Director reasonably believes would be undertake any action inconsistent with this Section 2.
(b) Notwithstanding anything in this Agreement to the fiduciary duties of the Directors under applicable Law). In addition to any other available remediescontrary, the Investor, Founders or any of their Affiliates, successors or permitted assigns shall not have the right to vote or grant consents with respect to any Securities acquired in violation foregoing provisions of this Section 6.4(i) and agrees to promptly sell any such Securities and shall be restrained from voting or granting consents with respect to all of its Securities at any annual or special meeting of the stockholders of the Company, however called, or in connection with any action by written consent in lieu of any such annual or special meeting of stockholders of the Company in violation of this Section 6.4(iv) and any decision, action or transaction by such Person made or effected in violation of this Section 6.4(iv) shall be null and void ab initio. Notwithstanding the foregoing, if following any Permitted Purchase made by the Founders, the Investor and its Affiliates and their respective transferees no longer hold, in the aggregate, the largest number of shares of Common Stock of the Company (assuming the conversion of Series B Preferred Stock into Common Stock, and with the Founders deemed as one single shareholder for the purpose of such determination), the Investor shall have the right to purchase such number of shares of Common Stock or other Securities so as to enable the Investor and its Affiliates and their respective transferees to become the holders, in the aggregate, of the largest number of shares of Common Stock of the Company (assuming the conversion of Series B Preferred Stock into Common Stock, and with the Founders deemed as one single shareholder for the purpose of such determination), any such purchases 2 shall not be deemed to restrict the Engaged Group from: (i) communicating privately with the Board or any of the Company’s officers regarding any matter, so long as such communications are not intended to, and would not reasonably be expected to, require any public disclosure of such communications, (ii) communicating privately with stockholders of the Company and others in a manner that does not otherwise violate the provision of this Section 6.42 or Section 5, or (iii) making any public disclosure necessary to comply with any Legal Requirement. Furthermore, for the avoidance of doubt, nothing in this Agreement shall be deemed to restrict in any way the New Director in the exercise of its fiduciary duties under applicable law as a director of the Company.
Appears in 1 contract
Standstill Agreement. For a period commencing with the date of this Agreement and ending on the earlier of (a) three (3) years following the Closing DateXxxxx agrees that, (b) the date when the Investor exercises the Warrant unless approved in full, or (c) the occurrence of a Significant Event, other than a Permitted Purchase or with the consent of at least seventy-five percent (75%) of the members of advance in writing by the Board, each neither Xxxxx nor any of the Investor and Founders agree not tohis affiliates, and to cause their none of such persons’ respective Affiliates not todirectors, officers, employees, managing members, general partners, agents and consultants, as applicable (iincluding attorneys, financial advisors and accountants) acquire(collectively, offer to acquire“Representatives”), acting on behalf of or agree to acquire, by purchase or otherwise, any Securities in concert with Xxxxx (or beneficial ownership thereof)any of Xxxxx’x Representatives) will, for a period of 18 months after the Separation Date, directly or rights indirectly:
a. Make any statement or options proposal to acquire any Securities (or beneficial ownership thereof), or any assets or businesses of the Company or its Subsidiaries constituting a significant portion of the consolidated assets of the Company and its Subsidiaries; (ii) make any public announcement with respect to, or submit a proposal for or offer of (with or without conditions), any merger, consolidation, tender or exchange offer, amalgamation, scheme of arrangement, recapitalization, reorganization, liquidation, dissolution, business combination, issuance or repurchase of Securities (including any tender offer) or other extraordinary transaction involving the CompanyBoard, any of the assets of the Company Company’s Representatives or its Subsidiaries constituting a significant portion of the consolidated assets of the Company and its Subsidiaries; (iii) advise, encourage, support or influence any Person (except the Board) with respect to any of the foregoing; (iv) initiateCompany’s shareholders regarding, or in make any way participatepublic announcement, directly proposal or indirectly, in offer (including any “solicitation” of “proxies” to vote (as such terms are defined or used in the rules Regulation 14A of the SECSecurities Exchange Act of 1934, as amended) with respect to, or otherwise solicit, seek or offer to effect (including, for the avoidance of doubt, indirectly by means of communication with the press or media) (A) any business combination, merger, tender offer, exchange offer or similar transaction involving the Company or any of its subsidiaries, (B) any restructuring, recapitalization, liquidation or similar transaction involving the Company or any of its subsidiaries, (C) any acquisition of any of the Company’s loans, debt securities, equity securities or assets, or rights or options to acquire interests in any of the Company’s loans, debt securities, equity securities or assets (other than as a retail investor in an amount not to exceed 4% of the Company’s outstanding capital), (D) any proposal to seek representation on the Board or otherwise seek to advise control or influence the management, Board or any Person or entity with respect to the voting of any Voting Securities policies of the Company, (E) any request or formproposal to waive, join terminate or in any way participate in a group for amend the purpose provisions of the voting of any Voting Securities of the Company (other than as contemplated hereunder or under the Shareholders this Agreement); , or (vF) publicly request any proposal, arrangement or other statement that is inconsistent with the Company or Board amend or waive any provision terms of this paragraph (including this sentence), or contest the validity of this paragraph (including this sentence)Agreement; provided, that nothing in for clauses (E) and (F) herein, the preceding clauses shall (A) restrict the Investor from prohibition will not apply to making a private, non-public, any statement or proposal to the Board for Board;
b. Instigate, encourage or assist any of third party (including forming a “group” with any such mattersthird party) to do, (B) apply to or enter into any “beneficial ownership” of Securities acquired discussions or deemed to be acquired by virtue of agreements with any third party with respect to, any of the arrangements expressly contemplated under the Transaction Documents, including actions set forth in clause a. above;
c. Take any voting agreements contemplated under the Shareholders Agreement, or (C) in any way action which would reasonably be deemed expected to require any Investor Director to take (or omitting to take) any actions in a manner he or she reasonably believes would be inconsistent with the fiduciary duties of the Directors under applicable Law (or obligate the Investor to cause any Investor Director to act or omit to act in a manner in which such Investor Director reasonably believes would be inconsistent with the fiduciary duties of the Directors under applicable Law). In addition to any other available remedies, the Investor, Founders Company or any of their Affiliatesits affiliates or subsidiaries to make a public announcement regarding any of the actions set forth in clause a. above; or
d. Acquire (or propose or agree to acquire), successors of record or permitted assigns shall not have beneficially, by purchase or otherwise, any loans, debt securities, equity securities or assets of the right to vote Company or grant consents with respect to any Securities acquired in violation of this Section 6.4(i) and agrees to promptly sell any such Securities and shall be restrained from voting or granting consents with respect to all of its Securities at subsidiaries, or rights or options to acquire interests in any annual or special meeting of the stockholders of the Company’s loans, however calleddebt securities, equity securities or in connection with any action by written consent in lieu of any such annual or special meeting of stockholders of the Company in violation of this Section 6.4(iv) and any decision, action or transaction by such Person made or effected in violation of this Section 6.4(iv) shall be null and void ab initio. Notwithstanding the foregoing, if following any Permitted Purchase made by the Founders, the Investor and its Affiliates and their respective transferees no longer hold, in the aggregate, the largest number of shares of Common Stock of the Company (assuming the conversion of Series B Preferred Stock into Common Stock, and with the Founders deemed as one single shareholder for the purpose of such determination), the Investor shall have the right to purchase such number of shares of Common Stock or other Securities so as to enable the Investor and its Affiliates and their respective transferees to become the holders, in the aggregate, of the largest number of shares of Common Stock of the Company (assuming the conversion of Series B Preferred Stock into Common Stock, and with the Founders deemed as one single shareholder for the purpose of such determination), any such purchases shall not be deemed to violate the provision of this Section 6.4assets.
Appears in 1 contract
Standstill Agreement. For a period commencing with the date of this Agreement and ending on the earlier of (a) three (3) years following Except as specifically permitted or required by this Restricted Stock Award, the Closing DateGrantee will not, (b) directly or indirectly, without the date when the Investor exercises the Warrant in full, or (c) the occurrence of a Significant Event, other than a Permitted Purchase or with the consent of at least seventy-five percent (75%) prior approval of the members Company’s board of directors (the “Company Board, each of the Investor and Founders agree not to, and to cause their respective Affiliates not to, ”),
(i) acquireacquire (or offer, offer to acquire, propose or agree to acquire, by purchase or otherwise, ) any Securities (or beneficial ownership thereof), or rights or options to acquire any Securities (or beneficial ownership thereof), or any assets or businesses shares of common stock of the Company or (“Common Stock”) by any means whatsoever (including pursuant to this Restricted Stock Award) if the total number of shares of Common Stock beneficially owned by the Grantee and its Subsidiaries constituting a significant portion Affiliates and any other persons whose beneficial ownership of Common Stock would be aggregated with the Grantee’s for purposes of Section 13(d) of the consolidated assets Exchange Act, exceeds 4.999% of the Company total number of issued and its Subsidiaries; outstanding shares of Common Stock following such acquisition (including for such purpose the shares of Common Stock issuable upon any conversion or exercise of another security including a warrant). For these purposes, beneficial ownership shall be determined in accordance with Section 13(d) of the Exchange Act and the rules and regulations promulgated thereunder;
(ii) make any public announcement with respect toengage, or submit become a proposal for or offer of (with or without conditions), any merger, consolidation, tender or exchange offer, amalgamation, scheme of arrangement, recapitalization, reorganization, liquidation, dissolution, business combination, issuance or repurchase of Securities (including any tender offer) or other extraordinary transaction involving the Company, any of the assets of the Company or its Subsidiaries constituting a significant portion of the consolidated assets of the Company and its Subsidiaries; (iii) advise, encourage, support or influence any Person (except the Board) with respect to any of the foregoing; (iv) initiate, or in any way participate, directly or indirectlyparticipant, in any “solicitation” of “proxies” to vote (as such terms are used defined in Regulation 14A under the rules Exchange Act) or consents to vote any shares of Common Stock;
(iii) grant a proxy or otherwise transfer the right to vote any shares of Common Stock, other than to the Company’s designee(s) pursuant to a proxy solicitation conducted by or on behalf of the SEC), Company Board;
(iv) act or seek to advise control or influence any Person the management, the Company Board or entity with respect to the voting of any Voting Securities of the Company, or form, join or in any way participate in a group for the purpose of the voting of any Voting Securities policies of the Company (including by seeking to call a shareholders meeting, proposing or nominating any person for election to the Company’s Board, submitting a proposal for action at a shareholders meeting or by consent of the shareholders in lieu of a meeting, proposing a merger, statutory share exchange or other than as contemplated hereunder business combination or under the Shareholders Agreementextraordinary corporate transaction, or otherwise); or ;
(v) publicly request the Company disclose any intention, plan or Board amend or waive any provision of this paragraph (including this sentence), or contest the validity of this paragraph (including this sentence); provided, that nothing in the preceding clauses shall (A) restrict the Investor from making a private, non-public, proposal to the Board for any of such matters, (B) apply to any “beneficial ownership” of Securities acquired or deemed to be acquired by virtue of any of the arrangements expressly contemplated under the Transaction Documents, including any voting agreements contemplated under the Shareholders Agreement, or (C) in any way be deemed to require any Investor Director to take (or omitting to take) any actions in a manner he or she reasonably believes would be arrangement inconsistent with the fiduciary duties of the Directors under applicable Law foregoing; or
(vi) advise, assist or obligate the Investor to cause any Investor Director to act or omit to act in a manner in which such Investor Director reasonably believes would be inconsistent with the fiduciary duties of the Directors under applicable Law). In addition to encourage any other available remedies, the Investor, Founders or any of their Affiliates, successors or permitted assigns shall not have the right to vote or grant consents with respect to any Securities acquired in violation of this Section 6.4(i) and agrees to promptly sell any such Securities and shall be restrained from voting or granting consents with respect to all of its Securities at any annual or special meeting of the stockholders of the Company, however called, or persons in connection with any action by written consent in lieu of any such annual or special meeting of stockholders of the Company in violation foregoing or to do any of the foregoing.
(b) The obligations of the Grantee under this Section 6.4(ivshall terminate in the event (i) any bona fide third party tender or exchange offer is publicly announced and commenced by any person other than the Grantee or an affiliate of the Grantee and any decision, action or transaction by such Person made or effected in violation other persons whose beneficial ownership of this Common Stock would be aggregated with the Grantee’s for purposes of Section 6.4(iv13(d) shall be null and void ab initio. Notwithstanding of the foregoing, if following any Permitted Purchase made by Exchange Act for at least 50% of the Founders, the Investor and its Affiliates and their respective transferees no longer hold, in the aggregate, the largest number of outstanding shares of Common Stock that is conditioned upon the offeror receiving tenders for at least 50% of the Company (assuming the conversion outstanding shares of Series B Preferred Stock into Common Stock, and or (ii) the Company enters into any agreement to merge or enter into a statutory share exchange with any person other than the Grantee or an affiliate of the Grantee or any other persons whose beneficial ownership of Common Stock would be aggregated with the Founders deemed Grantee’s for purposes of Section 13(d) of the Exchange Act following the closing of which the Common Stock would cease to be registered under the Exchange Act. All of the provisions of this Section shall be reinstated and shall apply in full force according to their terms in the event that: (A) if the provisions of Section 16(a) shall have terminated as one single shareholder for the purpose result of clause (i), and such determinationtender or exchange offer (as originally made or as amended or modified) shall have terminated without acquisition by the offeror of at least 50% of the outstanding shares of Common Stock; or (B) if the provisions of Section 16(a) shall have terminated as a result of clause (ii), such merger or share exchange agreement shall have been terminated prior to its closing. Upon reinstatement of the provisions of Section 16(a), the Investor shall have the right to purchase such number of shares of Common Stock or other Securities so as to enable the Investor and its Affiliates and their respective transferees to become the holders, in the aggregate, of the largest number of shares of Common Stock of the Company (assuming the conversion of Series B Preferred Stock into Common Stock, and with the Founders deemed as one single shareholder for the purpose of such determination), any such purchases shall not be deemed to violate the provision provisions of this Section 6.416(b) shall continue to govern in the event that any of the events described in this Section 16(b) shall subsequently occur.
Appears in 1 contract
Standstill Agreement. For a (a) During the period commencing with on the date of this Agreement hereof and ending on the earlier of (ai) three (3) years following the tenth anniversary of the Closing Date, Date (bthe "Standstill Period") or (ii) the date when the Investor exercises the Warrant in fullthese provisions terminate as provided herein, except as (x) specifically permitted by this Agreement or (cy) specifically approved in writing in advance by the occurrence Board of a Significant Event, other than a Permitted Purchase or with the consent of at least seventy-five percent (75%) Directors of the members of Company, the Board, each of the Investor and Founders agree not toPurchasers shall not, and shall cause any Affiliates controlled by them to cause their respective Affiliates not tonot, in any manner, directly or indirectly:
(i) acquire, or offer to acquire, or agree to acquire, by purchase or otherwisebecome the beneficial owner of or obtain any rights in respect of any capital stock of the Company, except, for any Securities (shares of Class A Common Stock that may be issuable upon the conversion of the Preferred Shares or beneficial ownership thereof)otherwise as permitted pursuant to this Agreement, or rights or options to acquire any Securities (or beneficial ownership thereof)provided, or any assets or businesses that the foregoing limitation shall not prohibit the acquisition of securities of the Company or any of its Subsidiaries constituting successors issued as dividends or as a significant portion result of stock splits and similar reclassifications or received in a merger or other business combination of Preferred Shares or Shares held by the consolidated assets Purchasers or any of their Affiliates at the Company and its Subsidiaries; time of such dividend, split or reclassification or merger or business combination;
(ii) make any public announcement with respect to, solicit proxies or submit consents or become a proposal for or offer of (with or without conditions), any merger, consolidation, tender or exchange offer, amalgamation, scheme of arrangement, recapitalization, reorganization, liquidation, dissolution, business combination, issuance or repurchase of Securities (including any tender offer) or other extraordinary transaction involving the Company, any of the assets of the Company or its Subsidiaries constituting "participant" in a significant portion of the consolidated assets of the Company and its Subsidiaries; (iii) advise, encourage, support or influence any Person (except the Board) with respect to any of the foregoing; (iv) initiate, or in any way participate, directly or indirectly, in any “"solicitation” of “proxies” to vote " (as such terms are defined or used in Regulation 14A under the rules Exchange Act) of proxies or consents with respect to any voting securities of the SEC)Company or any of its successors or initiate or become a participant in any stockholder proposal or "election contest" (as such term is defined or used in Rule 14a-11 under the Exchange Act) with respect to the Company or any of its successors or induce others to initiate the same, or otherwise seek to advise or influence any Person or entity person with respect to the voting of any Voting Securities voting securities of the CompanyCompany or any of its successors (except for activities undertaken by the Purchasers or the Purchasers' Directors in connection with solicitations by the Board of Directors);
(iii) publicly or privately propose, encourage, solicit or formparticipate in the solicitation of any person or entity to acquire, offer to acquire or agree to acquire, by merger, tender offer, purchase or otherwise, the Company or a substantial portion of its assets or more than 5% of the outstanding capital stock (except in connection with the registration of securities pursuant to the Registration Rights Agreement); and
(iv) directly or indirectly join in or in any way participate in a group pooling agreement, syndicate, voting trust or other arrangement with respect to the Company's voting securities or otherwise act in concert with any other Person (other than Affiliates), for the purpose of acquiring, holding, voting or disposing of the voting Company's securities.
(b) Nothing contained in this Section 4.13 shall be deemed to restrict the manner in which the Purchasers' Directors or the Non-Voting Observer participate in deliberations or discussions of any Voting Securities the Board of Directors.
(c) The standstill provisions set forth herein shall terminate on the earliest of (i) the last day of the Standstill Period, (ii) the date that Clark McLeod ceases to act as Chairman of the Board of Directxxx xx Xxxxxen Gray ceases to act as Chief Operating Officer (or a hxxxxx xxxxxxon) of the Company or neither of them serves as Chief Executive Officer of the Company, (other than as contemplated hereunder iii) upon any breach by the Company in any material respect of any covenant or under agreement contained in this Agreement or in any Transaction Document, (iv) upon the Shareholders Agreement); filing of a voluntary bankruptcy petition by the Company or on the 60th day following the filing of an involuntary bankruptcy petition against the Company if such petition is not discharged with prejudice during such 60-day period or (v) publicly request upon the Company or Board amend or waive any provision occurrence of this paragraph (including this sentence), or contest the validity of this paragraph (including this sentence); provided, that nothing a change in the preceding clauses shall (A) restrict the Investor from making a private, non-public, proposal to the Board for any of such matters, (B) apply to any “beneficial ownership” of Securities acquired or deemed to be acquired by virtue of any of the arrangements expressly contemplated under the Transaction Documents, including any voting agreements contemplated under the Shareholders Agreement, or (C) in any way be deemed to require any Investor Director to take (or omitting to take) any actions in a manner he or she reasonably believes would be inconsistent with the fiduciary duties of the Directors under applicable Law (or obligate the Investor to cause any Investor Director to act or omit to act in a manner in which such Investor Director reasonably believes would be inconsistent with the fiduciary duties of the Directors under applicable Law). In addition to any other available remedies, the Investor, Founders or any of their Affiliates, successors or permitted assigns shall not have the right to vote or grant consents with respect to any Securities acquired in violation of this Section 6.4(i) and agrees to promptly sell any such Securities and shall be restrained from voting or granting consents with respect to all of its Securities at any annual or special meeting of the stockholders of the Company, however called, or in connection with any action by written consent in lieu of any such annual or special meeting of stockholders control of the Company if the Purchasers are permitted to effect a Transfer in violation accordance with the provisions of this Section 6.4(iv4.12(b)(ii)(x), (y) and any decision, action or transaction by such Person made or effected in violation of this Section 6.4(iv(z) shall be null and void ab initio. Notwithstanding the foregoing, if following any Permitted Purchase made by the Founders, the Investor and its Affiliates and their respective transferees no longer hold, in the aggregate, the largest number of shares of Common Stock of the Company (assuming the conversion of Series B Preferred Stock into Common Stock, and with the Founders deemed as one single shareholder for the purpose of such determination), the Investor shall have the right to purchase such number of shares of Common Stock or other Securities so as to enable the Investor and its Affiliates and their respective transferees to become the holders, in the aggregate, of the largest number of shares of Common Stock of the Company (assuming the conversion of Series B Preferred Stock into Common Stock, and with the Founders deemed as one single shareholder for the purpose of such determination), any such purchases shall not be deemed to violate the provision of this Section 6.4hereof.
Appears in 1 contract
Samples: Stock Purchase Agreement (Forstmann Little & Co Sub Debt & Equ MGMT Buyout Part Vi Lp)
Standstill Agreement. For a period commencing with the date of this Agreement and ending on the earlier of (a) three (3) years following The Purchaser agrees that, during the Closing Date, (b) period commencing on the date when hereof and terminating on December 31, 2004, unless as shall have been specifically invited in writing by the Investor exercises Company, neither the Warrant in full, or Purchaser nor any affiliates (c) as such term is defined under the occurrence of a Significant Event, other than a Permitted Purchase or with the consent of at least seventy-five percent (75%Exchange Act) of the members of the BoardPurchaser will in any manner, each of the Investor and Founders agree not toexcept as set forth below, and to cause their respective Affiliates not to, directly or indirectly:
(i) acquireeffect or seek, offer or propose (whether publicly or otherwise) to acquireeffect, or agree cause or participate in or in any way assist or encourage any other Person to acquireeffect or seek, by purchase offer or propose (whether publicly or otherwise) to effect or participate in, (A) any acquisition of any Securities (or "beneficial ownership ownership" (as defined under the Exchange Act) thereof), or rights or options to acquire any Securities (or beneficial ownership thereof), or any assets or businesses ) of the Company or its Subsidiaries constituting a significant portion of the consolidated assets of the Company and its SubsidiariesCompany; (iiB) make any public announcement with respect to, or submit a proposal for or offer of (with or without conditions), any merger, consolidation, tender or exchange offeroffer (each, amalgamationan "Offer"), scheme of arrangementmerger, asset acquisition or other business combination involving the Company (each, a "Business Transaction"); (C) any recapitalization, reorganizationrestructuring, liquidation, dissolution, business combination, issuance or repurchase of Securities (including any tender offer) dissolution or other extraordinary transaction involving the Company, any of the assets of the Company or its Subsidiaries constituting a significant portion of the consolidated assets of the Company and its Subsidiaries; (iii) advise, encourage, support or influence any Person (except the Board) with respect to the Company; or (D) any "solicitation" of the foregoing; (iv) initiate, or in any way participate, directly or indirectly, in any “solicitation” of “"proxies” to vote " (as such terms are used in the proxy rules of the SEC), ) or seek consents to advise or influence vote any Person or entity with respect to the voting of any Voting Securities of the Company, or ;
(ii) form, join or in any way participate in a group for "group" (as defined under the purpose of the voting of Exchange Act) with respect to any Voting Securities of the Company (other than as contemplated hereunder any group including only the Purchaser and its affiliates);
(iii) otherwise act, alone or under in concert with others, to seek to control the Shareholders Agreement)Board of Directors of the Company;
(iv) knowingly take any action which might force the Company to make a public announcement regarding any of the types of matters set forth in (i) above; or or
(v) publicly request enter into any arrangements with any third party with respect to any of the Company or Board amend or waive any provision of this paragraph (including this sentence), or contest the validity of this paragraph (including this sentence)foregoing; provided, however, that nothing in this Section 7 shall limit the preceding clauses shall ability of the Purchaser (A) restrict to acquire shares of the Investor Company's voting Securities in the open market from making a private, non-public, proposal time to time provided that the Board for total amount of voting Securities of the Company "beneficially owned" (as defined under the Exchange Act) by the Purchaser immediately after any such acquisition does not exceed 25.0% of the Company's outstanding voting Securities (such matters, percentage calculated assuming conversion of all the Company's outstanding voting Securities into Common Stock); (B) apply to any “beneficial ownership” of Securities acquired tender shares into an Offer commenced by a third party that is unaffiliated with the Company or deemed to be acquired by virtue of any of the arrangements expressly contemplated under the Transaction Documents, including any voting agreements contemplated under the Shareholders Agreement, or Purchaser; (C) to submit in good faith to the Company a proposal relating to a Business Transaction involving the Company and the Purchaser, provided, however, that any way other Person (a "Third Party") has commenced a bona fide Offer to purchase at least a majority of the outstanding voting Securities of the Company, which Offer is not pursuant to an acquisition agreement to which the Company is a party; (D) to submit in good faith to the Company a proposal relating to a Business Transaction involving the Company and the Purchaser at any time after the delivery of a Proposal Notice (as defined in Section 7(b) below) to the Purchaser, provided, however, that the Business Transaction proposed by the Purchaser requires either (1) the approval of the Company's Board of Directors or (2) that the Company be deemed a party to require any Investor Director to take (or omitting to take) any actions in a manner he or she reasonably believes would be inconsistent an acquisition agreement with the fiduciary duties of the Directors under applicable Law Purchaser relating to such Business Transaction; or (or obligate the Investor to cause any Investor Director to act or omit to act in a manner in which such Investor Director reasonably believes would be inconsistent with the fiduciary duties of the Directors under applicable Law). In addition to any other available remedies, the Investor, Founders or any of their Affiliates, successors or permitted assigns shall not have the right E) to vote or grant consents with respect to any Securities acquired in violation of this Section 6.4(i) and agrees to promptly sell any such Securities and shall be restrained from voting or granting consents with respect to all of its Securities at any annual or special meeting of the stockholders of the Company.
(b) During the Notice Period (as defined below), however called, the Company agrees to provide the Purchaser with prompt written notice (a "Proposal Notice") of the existence of bona fide discussions (as reasonably determined by the Company in good faith) between the Company and a Third Party involving a Business Transaction or in connection with any action by written consent in lieu of any such annual or special meeting of stockholders a proposed Offer relating to the sale of the Company to such Third Party (unless such discussions relate to an unsolicited offer from such Third Party which is promptly rejected by the Company) (the "Third Party Business Transaction"). The Parties acknowledge and agree that a Proposal Notice (i) will not identify the name of the Third Party or any of the terms and conditions of the proposed Third Party Business Transaction and (ii) must be delivered to the Purchaser no later than two (2) calendar days following the commencement of bona fide discussions (as reasonably determined by the Company in violation good faith) with the Third Party relating to the Third Party Business Transaction and in any event at least five (5) calendar days prior to the execution of any definitive acquisition agreement between the Company and the Third Party relating to the Third Party Business Transaction. For purposes of this Section 6.4(iv) and any decision, action or transaction by such Person made or effected in violation of this Section 6.4(iv) shall be null and void ab initio. Notwithstanding the foregoing, if following any Permitted Purchase made by the Founders7(b), the Investor "Notice Period" shall mean the period commencing on the date hereof and its Affiliates and their respective transferees no longer holdterminating on the earlier of (y) December 31, in 2004 or (z) such time as the aggregate, the largest aggregate number of shares of Common Stock voting Securities of the Company "beneficially owned" (assuming as defined under the conversion of Series B Preferred Stock into Common StockExchange Act) by the Purchaser is less than 950,000 shares (as adjusted for stock splits, stock dividends and with similar adjustments). The Purchaser agrees to notify the Founders deemed Company as one single shareholder for promptly as reasonably practicable after the purpose of such determination)occurrence, the Investor shall have the right to purchase such number of shares of Common Stock or other Securities so as to enable the Investor and its Affiliates and their respective transferees to become the holders, in the aggregateif any, of the largest number of shares of Common Stock event referred to in clause (z) of the Company (assuming the conversion of Series B Preferred Stock into Common Stock, and with the Founders deemed as one single shareholder for the purpose of such determination), any such purchases shall not be deemed to violate the provision of this Section 6.4immediately preceding sentence.
Appears in 1 contract
Samples: Stock Purchase Agreement (Aspect Medical Systems Inc)
Standstill Agreement. For a period commencing with Purchaser agrees that, from and after the date of this Agreement and ending on hereof until the earlier of date that is six (a6) three (3) years following months after the Closing Date, (b) it shall not, unless specifically invited in writing by the date when the Investor exercises the Warrant in fullCompany’s Board of Directors, directly or (c) the occurrence of a Significant Event, other than a Permitted Purchase or with the consent of at least seventy-five percent (75%) of the members of the Board, each of the Investor and Founders agree not to, and to cause their respective Affiliates not to, indirectly: (i) acquireeffect or seek (including, without limitation, enter into any discussions, negotiations, agreements or understandings with any Third Party), offer or propose (whether publicly or otherwise) to acquireeffect, or agree cause or participate in, or in any way assist or facilitate any other Person to acquireeffect or seek, by purchase offer or propose (whether publicly or otherwise) to effect or participate in, (A) any Securities acquisition of any securities (or beneficial ownership thereof), or rights or options to acquire any Securities securities (or beneficial ownership thereof), or any assets or businesses businesses, of the Company or its Subsidiaries constituting a significant portion of the consolidated assets of the Company and its Subsidiaries; Company, (iiB) make any public announcement with respect to, or submit a proposal for or offer of (with or without conditions), any merger, consolidation, tender or exchange offer, amalgamationmerger, scheme of arrangementacquisition or other business combination involving the Company, (C) any recapitalization, reorganizationrestructuring, liquidation, dissolution, business combination, issuance or repurchase of Securities (including any tender offer) dissolution or other extraordinary transaction involving with respect to the Company, any of the assets of the Company or its Subsidiaries constituting a significant portion of the consolidated assets of the Company and its Subsidiaries; (iiiD) advise, encourage, support or influence any Person (except the Board) with respect to any of the foregoing; (iv) initiate, or in any way participate, directly or indirectly, in any “solicitation” of “proxies” to vote (as such terms are used in the proxy rules of the SEC), ) or seek consent to advise or influence vote any Person or entity with respect to the voting of any Voting Securities securities of the Company, or ; (ii) form, join or in any way participate participating in a group for “group” (as defined under the purpose Exchange Act) with respect to the Company; (iii) otherwise act, alone or in concert with others, to seek to control or influence the management, Board of the voting of any Voting Securities Directors or policies of the Company or initiate or take any action to obtain representation on the Board of Directors of the Company; (other than as contemplated hereunder iv) take any action which would or under would reasonably be expected to force the Shareholders Agreement)Company to make a public announcement regarding any of the types of matters set forth in (i) through (iii) above; or (v) publicly request enter into any discussions or arrangements with any Third Party with respect to any of the Company foregoing. The Purchaser also agrees that it shall not request, directly or Board amend indirectly, any amendment or waive waiver of any provision of this paragraph Section 6.1 (including this sentence), ) by the Company or contest the validity of this paragraph (including this sentence); provided, that nothing in the preceding clauses shall (A) restrict the Investor from making a private, non-public, proposal to the Board for any of such matters, (B) apply to any “beneficial ownership” of Securities acquired or deemed to be acquired by virtue of any of the arrangements expressly contemplated under the Transaction Documents, including any voting agreements contemplated under the Shareholders Agreement, or (C) in any way be deemed to require any Investor Director to take (or omitting to take) any actions in a manner he or she reasonably believes would be inconsistent with the fiduciary duties of the Directors under applicable Law (or obligate the Investor to cause any Investor Director to act or omit to act in a manner in which such Investor Director reasonably believes would be inconsistent with the fiduciary duties of the Directors under applicable Law). In addition to any other available remedies, the Investor, Founders or any of their Affiliates, successors or permitted assigns shall not have the right to vote or grant consents with respect to any Securities acquired in violation of this Section 6.4(i) and agrees to promptly sell any such Securities and shall be restrained from voting or granting consents with respect to all of its Securities at any annual or special meeting of the stockholders of the Company, however called, or in connection with any action by written consent in lieu of any such annual or special meeting of stockholders of the Company in violation of this Section 6.4(iv) and any decision, action or transaction by such Person made or effected in violation of this Section 6.4(iv) shall be null and void ab initio. Notwithstanding the foregoing, if following any Permitted Purchase made by the Founders, the Investor and its Affiliates and their respective transferees no longer hold, in the aggregate, the largest number of shares of Common Stock of the Company (assuming the conversion of Series B Preferred Stock into Common Stock, and with the Founders deemed as one single shareholder for the purpose of such determination), the Investor shall have the right to purchase such number of shares of Common Stock or other Securities so as to enable the Investor and its Affiliates and their respective transferees to become the holders, in the aggregate, of the largest number of shares of Common Stock of the Company (assuming the conversion of Series B Preferred Stock into Common Stock, and with the Founders deemed as one single shareholder for the purpose of such determination), any such purchases shall not be deemed to violate the provision of this Section 6.4’s representatives.
Appears in 1 contract
Samples: Stock Purchase Agreement (Vanda Pharmaceuticals Inc.)
Standstill Agreement. For a period commencing with (a) Paragraph (b) hereof shall replace, amend and restate in its entirety the date 10th paragraph of the Confidentiality Letter Agreement dated April 16, 2008 between the Company and Arrow Capital Management LLC (the “NDA”).
(b) Purchasers agree that except for the transactions contemplated by this Agreement and ending on until the earlier of (ai) three (3) years following the expiration of one year from the Closing Date, or (bii) the date when on which the Investor exercises the Warrant in full, or (c) the occurrence of Company publicly announces a Significant Event, other than a Permitted Purchase or with the consent of at least seventy-five percent (75%) significant corporate transaction requiring approval of the members Shareholders and involving a material acquisition, disposition, amalgamation, merger or consolidation or any other similar extraordinary corporate transaction including, without limitation, the issuance of equity or debt securities by the BoardCompany that requires the approval of Shareholders, each neither they nor any of the Investor and Founders agree not totheir affiliates, and to cause their respective Affiliates not toincluding Arrow Capital, will (ia) in any manner acquire, offer agree to acquire or make any proposal to acquire, directly or agree to acquire, by purchase or otherwiseindirectly, any Securities (securities or beneficial ownership thereof), or rights or options to acquire any Securities (or beneficial ownership thereof), or any assets or businesses property of the Company or any of its Subsidiaries constituting a significant portion subsidiaries, (b) except at the specific written request of the consolidated assets of the Company and its Subsidiaries; (ii) make any public announcement with respect to, or submit a proposal for or offer of (with or without conditions), any merger, consolidation, tender or exchange offer, amalgamation, scheme of arrangement, recapitalization, reorganization, liquidation, dissolution, business combination, issuance or repurchase of Securities (including any tender offer) or other extraordinary transaction involving the Company, propose to enter into, directly or indirectly, any merger or business combination involving the Company or any of its subsidiaries or to purchase, directly or indirectly, a material portion of the assets of the Company or its Subsidiaries constituting a significant portion of the consolidated assets of the Company and its Subsidiaries; (iii) advise, encourage, support or influence any Person (except the Board) with respect to any of the foregoing; its subsidiaries, (ivc) initiatemake, or in any way participateparticipate in, directly or indirectly, in any “‘solicitation” ’ of “‘proxies” to vote ’ (as such terms are used in the proxy rules of the SEC)Securities and Exchange Commission) to vote, or seek to advise or influence any Person or entity person with respect to the voting of of, any Voting Securities voting securities of the CompanyCompany or any of its subsidiaries, or (d) form, join or in any way participate in a group for ‘group’ (within the purpose meaning of Section 13(d)(3) of the voting Securities Exchange Act of any Voting Securities of the Company (other than as contemplated hereunder or under the Shareholders Agreement); or (v1934) publicly request the Company or Board amend or waive any provision of this paragraph (including this sentence), or contest the validity of this paragraph (including this sentence); provided, that nothing in the preceding clauses shall (A) restrict the Investor from making a private, non-public, proposal to the Board for any of such matters, (B) apply to any “beneficial ownership” of Securities acquired or deemed to be acquired by virtue of any of the arrangements expressly contemplated under the Transaction Documents, including any voting agreements contemplated under the Shareholders Agreement, or (C) in any way be deemed to require any Investor Director to take (or omitting to take) any actions in a manner he or she reasonably believes would be inconsistent with the fiduciary duties of the Directors under applicable Law (or obligate the Investor to cause any Investor Director to act or omit to act in a manner in which such Investor Director reasonably believes would be inconsistent with the fiduciary duties of the Directors under applicable Law). In addition to any other available remedies, the Investor, Founders or any of their Affiliates, successors or permitted assigns shall not have the right to vote or grant consents with respect to any Securities acquired in violation voting securities of this Section 6.4(i) and agrees to promptly sell the Company or any such Securities and shall be restrained from voting or granting consents with respect to all of its Securities at any annual subsidiaries, (e) otherwise act, alone or special meeting in concert with others, to seek to control or influence the management, Board of the stockholders Directors or policies of the Company, however called(f) disclose any intention, plan or arrangement inconsistent with the foregoing, (g) advise, assist or encourage any other persons in connection with any action by written consent in lieu of any such annual or special meeting of stockholders of the Company in violation foregoing, or (h) request any waiver of the provisions of this Section 6.4(iv) 6.6(b). Purchasers and Arrow Capital also agree during such period not to take any decisionaction which might require the Company to make a public announcement regarding the possibility of a business combination or merger; provided that notwithstanding the foregoing in addition to the Transactions, action or transaction by such Person made or effected Purchasers and Arrow Capital may purchase additional outstanding Common Shares in violation of this Section 6.4(iv) shall be null open market purchases in compliance with all applicable laws and void ab initio. Notwithstanding the foregoingregulations and, if following any Permitted Purchase made by the Foundersapplicable, the Investor Company’s xxxxxxx xxxxxxx policies commencing more than 30 days after the Closing Date, provided that Purchasers and its Affiliates and Arrow Capital together with their respective transferees no longer hold, in the aggregate, the largest number of shares of Common Stock affiliates shall not at any time collectively own more than 45% of the Company (assuming the conversion of Series B Preferred Stock into outstanding Common Stock, and with the Founders deemed as one single shareholder for the purpose of such determination), the Investor shall have the right to purchase such number of shares of Common Stock or other Securities so as to enable the Investor and its Affiliates and their respective transferees to become the holders, in the aggregate, of the largest number of shares of Common Stock of the Company (assuming the conversion of Series B Preferred Stock into Common Stock, and with the Founders deemed as one single shareholder for the purpose of such determination), any such purchases shall not be deemed to violate the provision of this Section 6.4Shares.
Appears in 1 contract
Standstill Agreement. For a period commencing with During the date of this Agreement Cooperation Period, the Engaged Group shall not, directly or indirectly, and ending on the earlier of (a) three (3) years following the Closing Date, (b) the date when the Investor exercises the Warrant in full, or (c) the occurrence of a Significant Event, other than a Permitted Purchase or with the consent of at least seventy-five percent (75%) of the members of the Board, it will cause each of the Investor and Founders agree not to, and to cause their respective its Affiliates not to, (i) acquire, offer to acquire, or agree to acquire, by purchase or otherwise, any Securities (or beneficial ownership thereof), or rights or options to acquire any Securities (or beneficial ownership thereof), or any assets or businesses of the Company or its Subsidiaries constituting a significant portion of the consolidated assets of the Company and its Subsidiaries; (ii) make any public announcement with respect to, or submit a proposal for or offer of (with or without conditions), any merger, consolidation, tender or exchange offer, amalgamation, scheme of arrangement, recapitalization, reorganization, liquidation, dissolution, business combination, issuance or repurchase of Securities (including any tender offer) or other extraordinary transaction involving the Company, any of the assets of the Company or its Subsidiaries constituting a significant portion of the consolidated assets of the Company and its Subsidiaries; (iii) advise, encourage, support or influence any Person (except the Board) with respect to any of the foregoing; (iv) initiate, or in any way participate, directly or indirectly, in any manner, alone or in concert with others:
(a) (i) acquire, cause to be acquired, or offer, seek or agree to acquire, directly or indirectly, whether by purchase, tender or exchange offer, through the acquisition of control of another person, by joining or forming a partnership, limited partnership, syndicate or other group (including any group of persons that would be treated as a single “person” under Section 13(d) of the Exchange Act (as defined below)), through swap or hedging transactions or otherwise (the taking of any such action, an “Acquisition”), Beneficial Ownership of any securities or assets of the Company (or any direct or indirect rights or options to acquire such ownership, including voting rights decoupled from the underlying Voting Securities) such that after giving effect to any such Acquisition, the Engaged Group or its Affiliates hold in excess of 9.9% of the outstanding Voting Securities, (ii) acquire, cause to be acquired, or offer, seek or agree to acquire, directly or indirectly, whether by purchase or otherwise, any interest in any indebtedness of the Company, or (iii) acquire, cause to be acquired, or offer, seek or agree to acquire, ownership of any asset or business of the Company or any right or option to acquire any such asset or business from any person;
(b) (i) nominate, give notice of an intent to nominate, or recommend for nomination a person for election to the Board or take any action in respect of the removal of any director (except as provided in Section 1), (ii) seek or encourage any person to submit any nomination in furtherance of a “contested solicitation” or take any other action in respect of the election or removal of any director (except as provided in Section 1), or (iii) submit, or seek or encourage the submission of, any stockholder proposal (pursuant to Rule 14a-8 or otherwise) for consideration at, or bring any other business before, any Stockholder Meeting (except as provided in Section 1); provided, however, that nothing in this Agreement shall prevent the Engaged Group or its Affiliates from taking actions in furtherance of identifying director candidates in connection with the 2022 Annual Meeting so long as such actions do not create a public disclosure obligation for the Engaged Group or the Company and are undertaken on a basis reasonably designed to be confidential and in accordance in all material respects with the Engaged Group’s normal practices in the circumstances;
(c) (i) seek to call, or to request the call of, a special meeting of the Company’s stockholders, or present (or request to present) at any Stockholder Meeting, any proposal for consideration for action by stockholders; or (ii) seek to amend any provision of the Charter, Bylaws, or other governing documents of the Company (each as may be amended from time to time) (in each case other than in connection with the Declassification Proposal);
(d) solicit any proxy, consent or other authority to vote of stockholders or conduct any other referendum (binding or non-binding) (including any “withhold,” “vote no” or similar campaign) with respect to, or from the holders of, Voting Securities, or become a “participant” (as such term is defined in Instruction 3 to Item 4 of Schedule 14A promulgated under the Exchange Act) in, or knowingly assist, advise, initiate, encourage or influence any person in, any “solicitation” of “proxies” to vote (as such terms are used term is defined in the rules Exchange Act) of any proxy, consent or other authority to vote any Voting Securities (other than such assistance, advice, encouragement or influence that is consistent with the Board’s recommendation in connection with such matter);
(e) (i) grant any proxy, consent or other authority to vote with respect to any matters (other than to the named proxies included in the Company’s proxy card for any Stockholder Meeting or as otherwise permitted by Section 1(d)(vi)) or (ii) deposit or agree or propose to deposit any securities of the SEC)Company in any voting trust or similar arrangement, or seek subject any securities of the Company to advise any agreement or influence any Person or entity arrangement with respect to the voting of such securities (including a voting agreement or pooling arrangement), other than (A) any such voting trust or arrangement solely for the purpose of delivering to the Company or its designee a proxy, consent, or other authority to vote in connection with a solicitation made by or on behalf of the Company or (B) customary brokerage accounts, margin accounts and prime brokerage accounts;
(f) knowingly encourage, advise or influence any person, or knowingly assist any third party in so encouraging, advising or influencing any person, with respect to the giving or withholding of any proxy, consent or authority to vote any Voting Securities of the Company, or in conducting any referendum (binding or non-binding) (including any “withhold,” “vote no” or similar campaign);
(g) form, join join, encourage the formation of, or in any way participate in a any partnership, limited partnership, syndicate or group for (within the purpose meaning of Section 13(d)(3) of the voting of Exchange Act) with respect to any Voting Securities of the Company (other than a group that includes any other members of the Engaged Group; provided that nothing herein shall limit the ability of an Affiliate of the Engaged Group to join such group following the execution of this Agreement, so long as contemplated hereunder or under any such Affiliate agrees to be bound by the Shareholders terms and conditions of this Agreement); ;
(i) make or (v) publicly advance any request the Company or Board amend proposal to amend, modify or waive any provision of this paragraph Agreement, (including ii) publicly request that the Company or any of its representatives release any Party from this sentence)Agreement, or contest (iii) take any action challenging the validity or enforceability of any provision of or obligation arising under this paragraph (including this sentence)Agreement; provided, that nothing in the preceding clauses shall (A) restrict the Investor from making a private, non-public, proposal Engaged Group may make confidential requests to the Board for to amend, modify or waive any provision of such matters, (B) apply to any “beneficial ownership” of Securities acquired or deemed to be acquired by virtue of any of the arrangements expressly contemplated under the Transaction Documents, including any voting agreements contemplated under the Shareholders this Agreement, which the Board may accept or (C) reject in its sole and absolute discretion, so long as any way be deemed to require any Investor Director to take (or omitting to take) any actions such request is not publicly disclosed by the Engaged Group and is made by the Engaged Group in a manner he that would not reasonably be expected to require the public disclosure thereof by the Company, the Engaged Group or she reasonably believes would be inconsistent with any other person;
(i) without the fiduciary duties prior written approval of the Directors under applicable Law (Company, separately or obligate the Investor in conjunction with any other person in which it is or proposes to cause any Investor Director be either a principal, partner or financing source or is acting or proposes to act as broker or omit to act agent for compensation, propose, suggest or recommend publicly or in a manner in which such Investor Director reasonably believes would be inconsistent with that the fiduciary duties of the Directors Engaged Group is required under applicable Law). In addition law, rule or regulation to disclose publicly or participate in or effect any Extraordinary Transaction or initiate or knowingly encourage any other available remediesthird party in any such activity, including making any outbound calls with respect to an Extraordinary Transaction; provided, that the Investor, Founders or Engaged Group shall notify the Company of any of their Affiliates, successors or permitted assigns shall not have the right to vote or grant consents inbound inquiries it receives with respect to any Securities acquired Extraordinary Transaction within three (3) days; provided further, that nothing in violation this Section 2(i) shall be interpreted to prohibit the Engaged Group from proposing, suggesting or recommending any Extraordinary Transaction privately to the Company so long as any such action is not publicly disclosed by the Engaged Group and is made by the Engaged Group in a manner that would not be expected to require the public disclosure thereof by the Company, the Engaged Group or any other person;
(j) make or disclose publicly (or privately in a manner that could reasonably be expected to become public) any statement regarding any intent, purpose, plan or proposal with respect to the Board, the Company, its management, policies or affairs or any of its securities or assets or this Agreement, that is inconsistent with the provisions of this Agreement;
(k) make a request for a list of the Company’s stockholders or for any books and records of the Company pursuant to Section 220 of the Delaware General Corporation Law or other applicable legal provisions regarding inspection of books and records or other materials (including stocklist materials);
(l) enter into any agreement, discussion, negotiation, arrangement or understanding concerning any of the foregoing (other than this Agreement) or assist, solicit, seek, seek to cause or knowingly encourage any person to undertake any action inconsistent with this Section 2. Notwithstanding anything in this Agreement to the contrary, the foregoing provisions of this Section 6.4(i) and agrees to promptly sell any such Securities and shall be restrained from voting or granting consents with respect to all of its Securities at any annual or special meeting of the stockholders of the Company, however called, or in connection with any action by written consent in lieu of any such annual or special meeting of stockholders of the Company in violation of this Section 6.4(iv) and any decision, action or transaction by such Person made or effected in violation of this Section 6.4(iv) shall be null and void ab initio. Notwithstanding the foregoing, if following any Permitted Purchase made by the Founders, the Investor and its Affiliates and their respective transferees no longer hold, in the aggregate, the largest number of shares of Common Stock of the Company (assuming the conversion of Series B Preferred Stock into Common Stock, and with the Founders deemed as one single shareholder for the purpose of such determination), the Investor shall have the right to purchase such number of shares of Common Stock or other Securities so as to enable the Investor and its Affiliates and their respective transferees to become the holders, in the aggregate, of the largest number of shares of Common Stock of the Company (assuming the conversion of Series B Preferred Stock into Common Stock, and with the Founders deemed as one single shareholder for the purpose of such determination), any such purchases 2 shall not be deemed to restrict the Engaged Group from: (i) communicating privately with the Board or any of the Company’s officers regarding any matter, so long as such communications are not intended to, and would not reasonably be expected to, require any public disclosure of such communications, (ii) privately communicating with stockholders of the Company and others in a manner that does not otherwise violate this Agreement, provided such communications are not reasonably expected to be publicly disclosed and are understood by all parties to be private communications and not undertaken with the provision of intent to circumvent this Section 6.42 or Section 5, or (iii) making any public disclosure necessary to comply with any Legal Requirement. Furthermore, for the avoidance of doubt, nothing in this Agreement shall be deemed to restrict in any way the New Director (or Replacement Director, if applicable) in the exercise of his or her fiduciary duties to the Company.
Appears in 1 contract
Standstill Agreement. For a period commencing with the date of this Agreement and ending on the earlier of (a) three (3) years following Except as specifically permitted or required by this Restricted Stock Award, the Closing DateGrantee will not, (b) directly or indirectly, without the date when the Investor exercises the Warrant in full, or (c) the occurrence of a Significant Event, other than a Permitted Purchase or with the consent of at least seventy-five percent (75%) prior approval of the members Company’s board of directors (the “Company Board, each of the Investor and Founders agree not to, and to cause their respective Affiliates not to, ”),
(i) acquireacquire (or offer, offer to acquire, propose or agree to acquire, by purchase or otherwise, ) any Securities (or beneficial ownership thereof), or rights or options to acquire any Securities (or beneficial ownership thereof), or any assets or businesses shares of common stock of the Company or (“Common Stock”) by any means whatsoever (including pursuant to this Restrcited Stock Award) if the total number of shares of Common Stock then beneficially owned by the Grantee and its Subsidiaries constituting a significant portion Affiliates and any other persons whose beneficial ownership of Common Stock would be aggregated with the Grantee’s for purposes of Section 13(d) of the consolidated assets Exchange Act, exceeds 4.999% of the Company total number of issued and its Subsidiaries; outstanding shares of Common Stock (including for such purpose the shares of Common Stock issuable upon any conversion or exercise of another security including a warrant). For these purposes, beneficial ownership shall be determined in accordance with Section 13(d) of the Exchange Act and the rules and regulations promulgated thereunder;
(ii) make any public announcement with respect toengage, or submit become a proposal for or offer of (with or without conditions), any merger, consolidation, tender or exchange offer, amalgamation, scheme of arrangement, recapitalization, reorganization, liquidation, dissolution, business combination, issuance or repurchase of Securities (including any tender offer) or other extraordinary transaction involving the Company, any of the assets of the Company or its Subsidiaries constituting a significant portion of the consolidated assets of the Company and its Subsidiaries; (iii) advise, encourage, support or influence any Person (except the Board) with respect to any of the foregoing; (iv) initiate, or in any way participate, directly or indirectlyparticipant, in any “solicitation” of “proxies” to vote (as such terms are used defined in Regulation 14A under the rules Exchange Act) or consents to vote any shares of Common Stock;
(iii) grant a proxy or otherwise transfer the right to vote any shares of Common Stock, other than to the Company’s designee(s) pursuant to a proxy solicitation conducted by or on behalf of the SEC), Company Board;
(iv) act or seek to advise control or influence any Person the management, the Company Board or entity with respect to the voting of any Voting Securities of the Company, or form, join or in any way participate in a group for the purpose of the voting of any Voting Securities policies of the Company (including by seeking to call a shareholders meeting, proposing or nominating any person for election to the Company’s Board, submitting a proposal for action at a shareholders meeting or by consent of the shareholders in lieu of a meeting, proposing a merger, statutory share exchange or other than as contemplated hereunder business combination or under the Shareholders Agreementextraordinary corporate transaction, or otherwise); or ;
(v) publicly request the Company disclose any intention, plan or Board amend or waive any provision of this paragraph (including this sentence), or contest the validity of this paragraph (including this sentence); provided, that nothing in the preceding clauses shall (A) restrict the Investor from making a private, non-public, proposal to the Board for any of such matters, (B) apply to any “beneficial ownership” of Securities acquired or deemed to be acquired by virtue of any of the arrangements expressly contemplated under the Transaction Documents, including any voting agreements contemplated under the Shareholders Agreement, or (C) in any way be deemed to require any Investor Director to take (or omitting to take) any actions in a manner he or she reasonably believes would be arrangement inconsistent with the fiduciary duties of the Directors under applicable Law foregoing; or
(vi) advise, assist or obligate the Investor to cause any Investor Director to act or omit to act in a manner in which such Investor Director reasonably believes would be inconsistent with the fiduciary duties of the Directors under applicable Law). In addition to encourage any other available remedies, the Investor, Founders or any of their Affiliates, successors or permitted assigns shall not have the right to vote or grant consents with respect to any Securities acquired in violation of this Section 6.4(i) and agrees to promptly sell any such Securities and shall be restrained from voting or granting consents with respect to all of its Securities at any annual or special meeting of the stockholders of the Company, however called, or persons in connection with any action by written consent in lieu of any such annual or special meeting of stockholders of the Company in violation foregoing or to do any of the foregoing.
(b) The obligations of the Grantee under this Section 6.4(ivshall terminate in the event (i) any bona fide third party tender or exchange offer is publicly announced and commenced by any person other than the Grantee or an affiliate of the Grantee and any decision, action or transaction by such Person made or effected in violation other persons whose beneficial ownership of this Common Stock would be aggregated with the Grantee’s for purposes of Section 6.4(iv13(d) shall be null and void ab initio. Notwithstanding of the foregoing, if following any Permitted Purchase made by Exchange Act for at least 50% of the Founders, the Investor and its Affiliates and their respective transferees no longer hold, in the aggregate, the largest number of outstanding shares of Common Stock that is conditioned upon the offeror receiving tenders for at least 50% of the Company (assuming the conversion outstanding shares of Series B Preferred Stock into Common Stock, and or (ii) the Company enters into any agreement to merge or enter into a statutory share exchange with any person other than the Grantee or an affiliate of the Grantee or any other persons whose beneficial ownership of Common Stock would be aggregated with the Founders deemed Grantee’s for purposes of Section 13(d) of the Exchange Act following the closing of which the Common Stock would cease to be registered under the Exchange Act. All of the provisions of this Section shall be reinstated and shall apply in full force according to their terms in the event that: (A) if the provisions of Section 16(a) shall have terminated as one single shareholder for the purpose result of clause (i), and such determinationtender or exchange offer (as originally made or as amended or modified) shall have terminated without acquisition by the offeror of at least 50% of the outstanding shares of Common Stock; or (B) if the provisions of Section 16(a) shall have terminated as a result of clause (ii), such merger or share exchange agreement shall have been terminated prior to its closing. Upon reinstatement of the provisions of Section 16(a), the Investor shall have the right to purchase such number of shares of Common Stock or other Securities so as to enable the Investor and its Affiliates and their respective transferees to become the holders, in the aggregate, of the largest number of shares of Common Stock of the Company (assuming the conversion of Series B Preferred Stock into Common Stock, and with the Founders deemed as one single shareholder for the purpose of such determination), any such purchases shall not be deemed to violate the provision provisions of this Section 6.416(b) shall continue to govern in the event that any of the events described in this Section 16(b) shall subsequently occur.
Appears in 1 contract
Standstill Agreement. For a period commencing with (a) Paragraph (b) hereof shall replace, amend and restate in its entirety the date 10th paragraph of the Confidentiality Letter Agreement dated April 16, 2008 between the Company and Arrow Capital Management LLC (the "NDA").
(b) Purchasers agree that except for the transactions contemplated by this Agreement and ending on until the earlier of (ai) three (3) years following the expiration of one year from the Closing Date, or (bii) the date when on which the Investor exercises the Warrant in full, or (c) the occurrence of Company publicly announces a Significant Event, other than a Permitted Purchase or with the consent of at least seventy-five percent (75%) significant corporate transaction requiring approval of the members Shareholders and involving a material acquisition, disposition, amalgamation, merger or consolidation or any other similar extraordinary corporate transaction including, without limitation, the issuance of equity or debt securities by the BoardCompany that requires the approval of Shareholders, each neither they nor any of the Investor and Founders agree not totheir affiliates, and to cause their respective Affiliates not toincluding Arrow Capital, will (ia) in any manner acquire, offer agree to acquire or make any proposal to acquire, directly or agree to acquire, by purchase or otherwiseindirectly, any Securities (securities or beneficial ownership thereof), or rights or options to acquire any Securities (or beneficial ownership thereof), or any assets or businesses property of the Company or any of its Subsidiaries constituting a significant portion subsidiaries, (b) except at the specific written request of the consolidated assets of the Company and its Subsidiaries; (ii) make any public announcement with respect to, or submit a proposal for or offer of (with or without conditions), any merger, consolidation, tender or exchange offer, amalgamation, scheme of arrangement, recapitalization, reorganization, liquidation, dissolution, business combination, issuance or repurchase of Securities (including any tender offer) or other extraordinary transaction involving the Company, propose to enter into, directly or indirectly, any merger or business combination involving the Company or any of its subsidiaries or to purchase, directly or indirectly, a material portion of the assets of the Company or its Subsidiaries constituting a significant portion of the consolidated assets of the Company and its Subsidiaries; (iii) advise, encourage, support or influence any Person (except the Board) with respect to any of the foregoing; its subsidiaries, (ivc) initiatemake, or in any way participateparticipate in, directly or indirectly, in any “`solicitation” ' of “`proxies” to vote ' (as such terms are used in the proxy rules of the SEC)Securities and Exchange Commission) to vote, or seek to advise or influence any Person or entity person with respect to the voting of of, any Voting Securities voting securities of the CompanyCompany or any of its subsidiaries, or (d) form, join or in any way participate in a group for `group' (within the purpose meaning of Section 13(d)(3) of the voting Securities Exchange Act of any Voting Securities of the Company (other than as contemplated hereunder or under the Shareholders Agreement); or (v1934) publicly request the Company or Board amend or waive any provision of this paragraph (including this sentence), or contest the validity of this paragraph (including this sentence); provided, that nothing in the preceding clauses shall (A) restrict the Investor from making a private, non-public, proposal to the Board for any of such matters, (B) apply to any “beneficial ownership” of Securities acquired or deemed to be acquired by virtue of any of the arrangements expressly contemplated under the Transaction Documents, including any voting agreements contemplated under the Shareholders Agreement, or (C) in any way be deemed to require any Investor Director to take (or omitting to take) any actions in a manner he or she reasonably believes would be inconsistent with the fiduciary duties of the Directors under applicable Law (or obligate the Investor to cause any Investor Director to act or omit to act in a manner in which such Investor Director reasonably believes would be inconsistent with the fiduciary duties of the Directors under applicable Law). In addition to any other available remedies, the Investor, Founders or any of their Affiliates, successors or permitted assigns shall not have the right to vote or grant consents with respect to any Securities acquired in violation voting securities of this Section 6.4(i) and agrees to promptly sell the Company or any such Securities and shall be restrained from voting or granting consents with respect to all of its Securities at any annual subsidiaries, (e) otherwise act, alone or special meeting in concert with others, to seek to control or influence the management, Board of the stockholders Directors or policies of the Company, however called(f) disclose any intention, plan or arrangement inconsistent with the foregoing, (g) advise, assist or encourage any other persons in connection with any action by written consent in lieu of any such annual or special meeting of stockholders of the Company in violation foregoing, or (h) request any waiver of the provisions of this Section 6.4(iv) 6.6(b). Purchasers and Arrow Capital also agree during such period not to take any decisionaction which might require the Company to make a public announcement regarding the possibility of a business combination or merger; provided that notwithstanding the foregoing in addition to the Transactions, action or transaction by such Person made or effected Purchasers and Arrow Capital may purchase additional outstanding Common Shares in violation of this Section 6.4(iv) shall be null open market purchases in compliance with all applicable laws and void ab initio. Notwithstanding the foregoingregulations and, if following any Permitted Purchase made by the Foundersapplicable, the Investor Company's insider trading policies commencing more than 30 days after the Cloxxxx Xxxx, xxxxided that Purchasers and its Affiliates and Arrow Capital together with their respective transferees no longer hold, in the aggregate, the largest number of shares of Common Stock affiliates shall not at any time collectively own more than 45% of the Company (assuming the conversion of Series B Preferred Stock into outstanding Common Stock, and with the Founders deemed as one single shareholder for the purpose of such determination), the Investor shall have the right to purchase such number of shares of Common Stock or other Securities so as to enable the Investor and its Affiliates and their respective transferees to become the holders, in the aggregate, of the largest number of shares of Common Stock of the Company (assuming the conversion of Series B Preferred Stock into Common Stock, and with the Founders deemed as one single shareholder for the purpose of such determination), any such purchases shall not be deemed to violate the provision of this Section 6.4Shares.
Appears in 1 contract
Standstill Agreement. For a During the period of time commencing with on the date hereof (the “Effective Date”) and continuing until the first anniversary of this Agreement the Effective Date, without the prior consent of the Board (as evidence by a duly adopted resolution), the Investor shall not, and ending on the earlier of shall cause their Affiliates not to:
(a) three (3) years following the Closing Date, (b) the date when the Investor exercises the Warrant in fullacquire, or (c) the occurrence of a Significant Event, other than a Permitted Purchase offer or with the consent of at least seventy-five percent (75%) of the members of the Board, each of the Investor and Founders agree not to, and to cause their respective Affiliates not to, (i) acquire, offer to acquire, seek or agree to acquire, directly or indirectly, by purchase or otherwise (collectively, “Acquire”), ownership (beneficial or otherwise, ) of any Securities additional securities or assets of the Company or any of its subsidiaries (or beneficial ownership thereof), any direct or indirect rights or options to acquire any Securities (or beneficial ownership thereof)such ownership, or any assets or businesses of the Company or its Subsidiaries constituting a significant portion of the consolidated assets of the Company and its Subsidiaries; (ii) make any public announcement with respect to, or submit a proposal for or offer of (with or without conditions), any merger, consolidation, tender or exchange offer, amalgamation, scheme of arrangement, recapitalization, reorganization, liquidation, dissolution, business combination, issuance or repurchase of Securities (including any tender offer) or other extraordinary transaction involving the Company, any of the assets of the Company or its Subsidiaries constituting a significant portion of the consolidated assets of the Company and its Subsidiaries; (iii) advise, encourage, support or influence any Person (except the Board) otherwise act in concert with respect to any of the foregoing; such securities, rights or options with any Person);
(ivb) initiatemake, or in any way participateparticipate in, directly or indirectly, in any “solicitation” of “proxies” to vote (as such terms are used in the rules Regulation 14A promulgated under the Securities Exchange Act of 1934, as amended (the “Exchange Act”)), become a “participant” in any “election contest” (as such terms are defined in Rule 14a-11 promulgated under the Exchange Act) or initiate, propose or otherwise solicit stockholders of the SEC)Company or its subsidiaries for the approval of any stockholder proposals;
(c) make, or seek participate in, directly or indirectly, in any tender offer, exchange offer, merger, business combination, recapitalization, restructuring, liquidation, dissolution or extraordinary transaction involving the Company or any of its subsidiaries or their securities or assets, provided that nothing in this Section 4 shall be construed to advise limit the Investor’s (or influence its Affiliates’) ability to exercise rights that are exercisable by the holders of the class of securities held by the Investor or its Affiliates with respect to a given transaction;
(d) form, join, participate in, or encourage the formation of, a group (within the meaning of Section 13(d)(3) of the Exchange Act) with respect to any Person voting securities of the Company or entity any of its subsidiaries;
(e) deposit any securities of the Company or any of its subsidiaries into a voting trust, or subject any securities of the Company or any of its subsidiaries to any agreement or arrangement with respect to the voting of such securities;
(f) make any Voting Securities of the Companypublic announcement with respect to, or formsubmit a proposal for, join or in any way participate in a group for the purpose of the voting offer (with or without conditions) of any Voting Securities extraordinary transaction involving the Company or any of its subsidiaries or any of their securities or assets;
(g) seek, or encourage or support any effort, to influence or control the management, board of directors, business, or policies of the Company or any of its subsidiaries, provided that this subclause (g) shall not apply to any actions taken by a representative of the Investor on the Board in his or her capacity as a director or actions taken by the Investor in accordance with agreements between it and the Company;
(h) encourage or assist any other than as contemplated hereunder or under Person to undertake any of the Shareholders Agreement)foregoing actions; or or
(vi) publicly request take any action that could reasonably be expected to require the Company or Board amend or waive any provision of this paragraph (including this sentence), or contest the validity of this paragraph (including this sentence); provided, that nothing in the preceding clauses shall (A) restrict the Investor from making a private, non-public, proposal to the Board for any of such matters, (B) apply its subsidiaries to any “beneficial ownership” of Securities acquired or deemed to be acquired by virtue make a public announcement regarding the possibility of any of the arrangements expressly contemplated under the Transaction Documents, including any voting agreements contemplated under the Shareholders Agreement, or (C) events described in any way be deemed to require any Investor Director to take (or omitting to take) any actions in a manner he or she reasonably believes would be inconsistent with the fiduciary duties of the Directors under applicable Law (or obligate the Investor to cause any Investor Director to act or omit to act in a manner in which such Investor Director reasonably believes would be inconsistent with the fiduciary duties of the Directors under applicable Law). In addition to any other available remedies, the Investor, Founders or any of their Affiliates, successors or permitted assigns shall not have the right to vote or grant consents with respect to any Securities acquired in violation of this Section 6.4(i) and agrees to promptly sell any such Securities and shall be restrained from voting or granting consents with respect to all of its Securities at any annual or special meeting of the stockholders of the Company, however called, or in connection with any action by written consent in lieu of any such annual or special meeting of stockholders of the Company in violation of this Section 6.4(iv) and any decision, action or transaction by such Person made or effected in violation of this Section 6.4(iv) shall be null and void ab initio. Notwithstanding the foregoing, if following any Permitted Purchase made by the Founders, the Investor and its Affiliates and their respective transferees no longer hold, in the aggregate, the largest number of shares of Common Stock of the Company (assuming the conversion of Series B Preferred Stock into Common Stock, and with the Founders deemed as one single shareholder for the purpose of such determination), the Investor shall have the right to purchase such number of shares of Common Stock or other Securities so as to enable the Investor and its Affiliates and their respective transferees to become the holders, in the aggregate, of the largest number of shares of Common Stock of the Company (assuming the conversion of Series B Preferred Stock into Common Stock, and with the Founders deemed as one single shareholder for the purpose of such determination), any such purchases shall not be deemed to violate the provision of this Section 6.42.
Appears in 1 contract
