Standstill Provision. (a) During the 12-month period commencing on last date of execution of the Fourth Amendment to the Agreement (“Standstill Period”), except as otherwise provided in this Agreement, Counterparty and Counterparty’s Affiliates will not, directly or indirectly, and will not encourage or assist others to, without the prior written invitation of Morphic Holding’s Board of Directors: (i) whether alone or in concert with others, make any proposal regarding, or otherwise be involved in, any extraordinary transactions such as a merger, consolidation, acquisition, tender offer or exchange offer, purchase of assets of business, corporate reorganization, recapitalization, restructuring, or liquidation, involving Morphic Holding or any of its Affiliates or assets; (ii) whether alone or in concert with others, acquire or agree, offer, seek or propose to acquire, or cause to be acquired, ownership (including any voting right or beneficial ownership as defined in Rule 13d-3 under the Securities Exchange Act of 1934, as amended (the “Exchange Act”)) of any voting securities of Morphic Holding or any option, forward contract, swap or other position with a value derived from securities of Morphic Holding (collectively with the transactions described in (i) above, a “Business Combination”); (iii) make, or in any way participate in, any “solicitation” (as such terms is defined in Rule 14a-1 under the Exchange Act, including any otherwise exempt solicitation pursuant to Rule 14a-2(b) under the Exchange Act) to vote or seek to advise or influence in any manner whatsoever any person with respect to the voting of any securities of Morphic Holding; (iv) form, join, or in any way communicate or associate with other securityholders or participate in a “group” (within the meaning of Section 13(d)(3) of the Exchange Act) with respect to any securities (including in derivative form) of Morphic Holding or a Business Combination involving Morphic Holding; (v) nominate any person as a director of Morphic Holding; (vi) propose any matter to be voted upon by the stockholders of Morphic Holding; or (vii) take any action that would, or would reasonably be expected to cause or require Counterparty or Morphic Holding to make a public announcement regarding a potential Business Combination, taking into account Morphic Holding’s circumstances at the time to the extent known to Counterparty, except for the private communications, proposals or offers as provided below. (b) Notwithstanding anything to the contrary in this Agreement, Section 12(a) shall be of no force and effect if at any time during the Standstill Period: (i) a third party commences a tender or exchange offer for at least 50% of the outstanding common shares of Morphic Holding and the Board of Directors of Morphic Holding does not publicly recommend that the stockholders of Morphic Holding reject such offer within ten (10) business days of the commencement thereof; or (ii) Morphic Holding announces that it has entered into a definitive agreement with a third party with respect to a possible Business Combination in which Morphic Holding’s stockholders immediately prior to such Business Combination would retain or receive voting securities which would constitute immediately following such Business Combination less than 50% of the combined voting power of the voting securities of the entity surviving the Business Combination or the ultimate parent company of such entity. (c) Notwithstanding anything to the contrary in this Agreement, nothing in this Section 12 shall prevent Counterparty from: (i) having a private communication with, or making a private offer or proposal to, Morphic Holding’s CEO or Board of Directors so long as such private communication, offer or proposal, would not reasonably be expected to require a public disclosure under applicable law or the listing requirements of the primary securities exchange on which Morphic Holding’s securities are listed; provided that the contents, subject and existence of any such communications shall constitute Confidential Information hereunder; (ii) making passive investments by a pension or employee benefit plan or trust for Counterparty (or its Affiliates) employees so long as such investments (including trading) are directed by independent trustees or administrators who have not received and do not have access to Morphic Holding’s Confidential Information (including the fact that a Potential Transaction has been considered) and such investments do not require Counterparty or its Affiliates to file a Schedule 13D or 13G with the SEC with respect to Morphic Holding’s securities; (iii) acquiring the equity securities of an entity that owns securities in Morphic Holding prior to such transaction contemplated herein so long as such acquisition is not consummated for the purpose for circumventing this Section 12; or (iv) acquiring (directly or indirectly) up to an aggregate of five percent (5%) of the outstanding securities of Morphic Holding.
Appears in 1 contract
Standstill Provision. Commencing on the Effective Date and for three (a3) During years thereafter, (the 12-month period commencing on last date of execution of the Fourth Amendment to the Agreement (“Standstill Period”), except as otherwise provided in this Agreement, Counterparty and Counterparty’s Affiliates will not, directly or indirectly, and will not encourage or assist others to, without the prior written invitation of Morphic Holding’s Board of Directors:
(i) whether alone or in concert with others, make any proposal regarding, or otherwise be involved in, any extraordinary transactions such as a merger, consolidation, acquisition, tender offer or exchange offer, purchase of assets of business, corporate reorganization, recapitalization, restructuring, or liquidation, involving Morphic Holding or neither Company nor any of its Affiliates or assets;
Company’s affiliates (ii) whether alone or in concert with others, acquire or agree, offer, seek or propose to acquire, or cause to be acquired, ownership (including any voting right or beneficial ownership as defined in Rule 13d-3 12b-2 under the Securities Exchange Act of 1934, as amended (the “Exchange Act”)) of any voting securities of Morphic Holding will, directly or any option, forward contract, swap or other position with a value derived from securities of Morphic Holding (collectively with the transactions described in indirectly (i) aboveacquire, offer to acquire, agree to acquire or make a proposal to acquire, by purchase or otherwise, “Business Combination”beneficial ownership” (as defined in Section 13(d) of the Exchange Act) of any equity securities or assets, or rights or options to acquire any such securities or assets (through purchase, exchange, conversion or otherwise);
, of Discloser, including derivative securities representing the right to vote or economic benefits of any such securities; (ii) make, effect or commence any tender or exchange offer, merger or other business combination involving Discloser; (iii) consummate or commence any recapitalization, restructuring, liquidation, dissolution or other extraordinary transaction with respect to Discloser; (iv) make, or in any way participate in, any “solicitation” (as such terms is defined in Rule 14a-1 under the Exchange Act, including any otherwise exempt solicitation pursuant to Rule 14a-2(b) under the Exchange Act) of proxies to vote or consent, or seek to advise or influence in any manner whatsoever any person with respect to the voting of of, any voting securities of Morphic Holding;
Discloser or be or become a “participant” in any “election contest” with respect to Discloser (ivall within the meaning of Section 14 of the Exchange Act); (v) form, join, join or in any way communicate or associate with other securityholders or participate in a “group” (within the meaning of Section 13(d)(3) of the Exchange Act) with respect to any securities (including to, or otherwise act in derivative form) of Morphic Holding or a Business Combination involving Morphic Holding;
(v) nominate concert with any person as a director in respect of, any voting equity securities of Morphic Holding;
Discloser; (vi) propose any matter otherwise act, alone or in concert with others, to be voted upon by the stockholders of Morphic Holding; seek representation on or to control or
(vii) take any action that would, or would reasonably be expected to cause or require Counterparty or Morphic Holding to make a public announcement regarding a potential Business Combination, taking into account Morphic Holding’s circumstances at the time to the extent known to Counterparty, except for the private communications, proposals or offers as provided below.
(b) Notwithstanding anything to the contrary in this Agreement, Section 12(a) shall be of no force and effect if at any time during the Standstill Period: (i) a third party commences a tender or exchange offer for at least 50% of the outstanding common shares of Morphic Holding and the Board of Directors of Morphic Holding does not publicly recommend that the stockholders of Morphic Holding reject such offer within ten (10) business days of the commencement thereof; or (ii) Morphic Holding announces that it has entered into a definitive agreement with a third party with respect to a possible Business Combination in which Morphic Holding’s stockholders immediately prior to such Business Combination would retain or receive voting securities which would constitute immediately following such Business Combination less than 50% of the combined voting power of the voting securities of the entity surviving the Business Combination or the ultimate parent company of such entity.
(c) Notwithstanding anything to the contrary in this Agreement, nothing in this Section 12 shall prevent Counterparty from: (i) having a private communication with, or making a private offer or proposal to, Morphic Holding’s CEO or Board of Directors so long as such private communication, offer or proposal, would not reasonably be expected to require a public disclosure under applicable law or the listing requirements of the primary securities exchange on which Morphic Holding’s securities are listed; provided that the contents, subject and existence of any such communications shall constitute Confidential Information hereunder; (ii) making passive investments by a pension or employee benefit plan or trust for Counterparty (or its Affiliates) employees so long as such investments (including trading) are directed by independent trustees or administrators who have not received and do not have access to Morphic Holding’s Confidential Information (including the fact that a Potential Transaction has been considered) and such investments do not require Counterparty or its Affiliates to file a Schedule 13D or 13G with the SEC with respect to Morphic Holding’s securities; (iii) acquiring the equity securities of an entity that owns securities in Morphic Holding prior to such transaction contemplated herein so long as such acquisition is not consummated for the purpose for circumventing this Section 12; or (iv) acquiring (directly or indirectly) up to an aggregate of five percent (5%) of the outstanding securities of Morphic Holding.
Appears in 1 contract
Standstill Provision. (a) During the 12-month period commencing on last the date of execution of the Fourth Third Amendment to the Agreement (“Standstill Period”), except as otherwise provided in this Agreement, Counterparty and Counterparty’s Affiliates will not, directly or indirectly, and will not encourage or assist others to, without the prior written invitation of Morphic Holding’s Board of Directors:
(i) whether alone or in concert with others, make any proposal regarding, or otherwise be involved in, any extraordinary transactions such as a merger, consolidation, acquisition, tender offer or exchange offer, purchase of assets of business, corporate reorganization, recapitalization, restructuring, or liquidation, involving Morphic Holding or any of its Affiliates or assets;
(ii) whether alone or in concert with others, acquire or agree, offer, seek or propose to acquire, or cause to be acquired, ownership (including any voting right or beneficial ownership as defined in Rule 13d-3 under the Securities Exchange Act of 1934, as amended (the “Exchange Act”)) of any voting securities of Morphic Holding or any option, forward contract, swap or other position with a value derived from securities of Morphic Holding (collectively with the transactions described in (i) above, a “Business Combination”);
(iii) make, or in any way participate in, any “solicitation” (as such terms is defined in Rule 14a-1 under the Exchange Act, including any otherwise exempt solicitation pursuant to Rule 14a-2(b) under the Exchange Act) to vote or seek to advise or influence in any manner whatsoever any person with respect to the voting of any securities of Morphic Holding;
(iv) form, join, or in any way communicate or associate with other securityholders or participate in a “group” (within the meaning of Section 13(d)(3) of the Exchange Act) with respect to any securities (including in derivative form) of Morphic Holding or a Business Combination involving Morphic Holding;
(v) nominate any person as a director of Morphic Holding;
(vi) propose any matter to be voted upon by the stockholders of Morphic Holding; or
(vii) take any action that would, or would reasonably be expected to might cause or require Counterparty or Morphic Holding to make a public announcement regarding a potential Business Combination, taking into account Morphic Holding’s circumstances at the time to the extent known to Counterparty, except for the private communications, proposals or offers communications as provided below.
(b) Notwithstanding anything to the contrary in this Agreement, Section 12(a) shall be of no force and effect if at any time during the Standstill Period: (i) a third party commences a tender or exchange offer for at least 50% of the outstanding common shares of Morphic Holding and the Board of Directors of Morphic Holding does not publicly recommend that the stockholders of Morphic Holding reject such offer within ten (10) business days of the commencement thereof; or (ii) Morphic Holding announces that it has entered into a definitive agreement with a third party with respect to a possible Business Combination in which Morphic Holding’s stockholders immediately prior to such Business Combination would retain or receive voting securities which would constitute immediately following such Business Combination less than 50% of the combined voting power of the voting securities of the entity surviving the Business Combination or the ultimate parent company of such entity.
(c) Notwithstanding anything to the contrary in this Agreement, nothing in this Section 12 shall prevent Counterparty from: (i) having a private communication with, or making a private offer or proposal to, to Morphic Holding’s CEO or Board of Directors so long as such private communication, offer or proposal, communication would not reasonably be expected to require a public disclosure under applicable law or the listing requirements of the primary securities exchange on which Morphic Holding’s securities are listed; provided that the contents, subject and existence of any such communications shall constitute Confidential Information hereunder; (ii) making passive investments by a pension or employee benefit plan or trust for Counterparty (or its Affiliates) employees so long as such investments (including trading) are directed by independent trustees or administrators who have not received and do not have access to Morphic Holding’s Confidential Information (including the fact that a Potential Transaction has been considered) and such investments do not require Counterparty or its Affiliates to file a Schedule 13D or 13G with the SEC with respect to Morphic Holding’s securities; (iii) acquiring the equity securities of an entity that owns securities in Morphic Holding prior to such transaction contemplated herein so long as such acquisition is not consummated for the purpose for circumventing this Section 12; or (iv) acquiring (directly or indirectly) up to an aggregate of five percent (5%) of the outstanding securities of Morphic Holding.such
Appears in 1 contract
Standstill Provision. Buyer agrees that until the earlier to occur of (x) eighteen (18) months from the date of this Agreement and (y) the execution of a definitive agreement with respect to the Possible Transaction, unless specifically invited in writing to do so by eTelecare, Buyer and each of its affiliates will not in any manner (a) During the 12-month period commencing on last date of execution of the Fourth Amendment effect, or seek, offer or propose to the Agreement effect (“Standstill Period”whether publicly or otherwise), except as otherwise provided in this Agreementor cause or participate in, Counterparty and Counterparty’s Affiliates will not, directly (i) any acquisition of (A) any securities (or indirectly, and will not encourage or assist others beneficial ownership thereof) entitled to, without or that may be entitled to, vote in the prior written invitation election of Morphic HoldingeTelecare’s Board of Directors:
, including American Depositary Shares representing common shares of eTelecare (icollectively, “Voting Securities”), (B) whether alone any rights or in concert with others, make options to acquire any proposal regardingVoting Securities, or otherwise be involved in(C) any assets or non Voting Securities of eTelecare or any assets or securities of its subsidiaries; in each case, except for such assets or securities as are then being offered for sale by eTelecare or any extraordinary transactions such as a of its subsidiaries, (ii) any merger, consolidation, acquisition, tender offer or exchange offer, purchase of assets of businessor other business combination involving eTelecare or any subsidiary thereof, corporate reorganization(iii) any restructuring, recapitalization, restructuring, or liquidation, involving Morphic Holding dissolution or similar transaction with respect to eTelecare or any subsidiary thereof; (iv) any “solicitation” of its Affiliates “proxies” (as such terms are defined or assets;
(ii) whether alone or used in concert with others, acquire or agree, offer, seek or propose to acquire, or cause to be acquired, ownership (including any voting right or beneficial ownership as defined in Rule 13d-3 under Regulation 14A of the Securities United States Exchange Act of 1934, as amended 1934 (the “Exchange Act”)) of or consents with respect to any voting securities of Morphic Holding or any option, forward contract, swap or other position with a value derived from securities of Morphic Holding (collectively with the transactions described in (i) above, a “Business Combination”);
(iii) make, or in any way participate inVoting Securities, any “solicitationelection contest” (as such terms term is defined or used in Rule 14a-1 under the Exchange Act, including any otherwise exempt solicitation pursuant to Rule 14a-2(b) under 14a-11 of the Exchange Act) to vote or seek to advise or influence in any manner whatsoever any person with respect to the voting eTelecare, or any demand for a copy of any securities eTelecare’s stock ledger, list of Morphic Holding;
its stockholders, or other books and records; (ivb) form, join, or in any way communicate or associate with other securityholders join or participate in a “group” any group (within the meaning of Section 13(d)(3) of the Exchange Act) with respect to the matters set forth in clause (a); or (c) make (publicly or to eTelecare, its Representatives or securityholders, directly or indirectly) any request or proposal to amend, waive or terminate any provision of this Section 9 or any inquiry or statement relating thereto; provided; however nothing herein shall preclude or affect (1) the Possible Transaction or (2) the acquisition by Buyer or any of its affiliates of any entity or business (through stock purchase, asset purchase, merger or otherwise) that holds securities (including in derivative form) of Morphic Holding eTelecare. Notwithstanding the foregoing, the provisions of this Section shall not apply, and the Buyer or a Business Combination involving Morphic Holding;
(v) nominate any person as a director of Morphic Holding;
(vi) propose any matter to be voted upon by the stockholders of Morphic Holding; or
(vii) take any action that would, or would reasonably be expected to cause or require Counterparty or Morphic Holding to make a public announcement regarding a potential Business Combination, taking into account Morphic Holding’s circumstances at the time to the extent known to Counterparty, except for the private communications, proposals or offers as provided below.
(b) Notwithstanding anything to the contrary in this Agreement, Section 12(a) its affiliates shall be free to engage in any of no force and effect if at the activities otherwise prohibited by this Section, in the event any time during of the Standstill Periodfollowing shall occur: (i) the acquisition of securities, directly or indirectly, by any person or group of persons acting as a third party commences group (other than the Buyer) if, as a result of such acquisition, the person or group of persons owns 25% or more of any class of the then outstanding Voting Securities; (ii) the commencement by any person or group of persons acting as a group (other than the Buyer) of a tender or exchange offer for at least if, as a result of such tender or exchange offer, the person or group of persons would own 25% or more of any class of the then outstanding Voting Securities; or (iii) the formal public announcement by eTelecare of board approval and the execution of a definitive agreement that would result in the acquisition by a person (other than the Buyer) of more than 50% of the outstanding common shares Voting Securities of Morphic Holding and the Board eTelecare or all or substantially all of Directors of Morphic Holding does not publicly recommend that the stockholders of Morphic Holding reject such offer within ten (10) business days of the commencement thereof; or (ii) Morphic Holding announces that it has entered into a definitive agreement with a third party with respect to a possible Business Combination in which Morphic HoldingeTelecare’s stockholders immediately prior to such Business Combination would retain or receive voting securities which would constitute immediately following such Business Combination less than 50% of the combined voting power of the voting securities of the entity surviving the Business Combination or the ultimate parent company of such entityassets.
(c) Notwithstanding anything to the contrary in this Agreement, nothing in this Section 12 shall prevent Counterparty from: (i) having a private communication with, or making a private offer or proposal to, Morphic Holding’s CEO or Board of Directors so long as such private communication, offer or proposal, would not reasonably be expected to require a public disclosure under applicable law or the listing requirements of the primary securities exchange on which Morphic Holding’s securities are listed; provided that the contents, subject and existence of any such communications shall constitute Confidential Information hereunder; (ii) making passive investments by a pension or employee benefit plan or trust for Counterparty (or its Affiliates) employees so long as such investments (including trading) are directed by independent trustees or administrators who have not received and do not have access to Morphic Holding’s Confidential Information (including the fact that a Potential Transaction has been considered) and such investments do not require Counterparty or its Affiliates to file a Schedule 13D or 13G with the SEC with respect to Morphic Holding’s securities; (iii) acquiring the equity securities of an entity that owns securities in Morphic Holding prior to such transaction contemplated herein so long as such acquisition is not consummated for the purpose for circumventing this Section 12; or (iv) acquiring (directly or indirectly) up to an aggregate of five percent (5%) of the outstanding securities of Morphic Holding.
Appears in 1 contract
Samples: Non Disclosure Agreement (eTelecare Global Solutions, Inc.)
Standstill Provision. (a) During Intrexon hereby agrees that, for a period of three years from the 12-month period commencing on last date hereof, unless specifically invited in writing by the Company to do so, neither Intrexon nor any of execution its Affiliates will, or will cause or knowingly permit any of the Fourth Amendment to the Agreement (“Standstill Period”)its or their directors, except as otherwise provided officers, employees, investment bankers, attorneys, accountants or other advisors or representatives to, in this Agreement, Counterparty and Counterparty’s Affiliates will notany manner, directly or indirectly: effect or seek, and will not encourage initiate, offer or propose (whether publicly or otherwise) to effect, or cause or participate in or in any way advise or, assist others toany other person to effect or seek, without initiate, offer or propose (whether publicly or otherwise) to effect or cause or participate in, any acquisition of any securities (or beneficial ownership thereof) or assets of the prior written invitation Company; any tender or exchange offer, merger, consolidation or other business combination involving the Company; any recapitalization, restructuring, liquidation, dissolution or other extraordinary transaction with respect to the Company; or any “solicitation” of Morphic Holding’s Board “proxies” (as such terms are used in the proxy rules of Directors:
the Commission) or consents to vote any voting securities of the Company; form, join or in any way participate in a “group” (ias defined under the Exchange Act, hereafter a “Group”) whether with respect to any securities of the Company; otherwise act, alone or in concert with others, make any proposal regardingto seek to control or influence the management, board of directors, or otherwise be involved in, any extraordinary transactions such as a merger, consolidation, acquisition, tender offer or exchange offer, purchase of assets of business, corporate reorganization, recapitalization, restructuring, or liquidation, involving Morphic Holding or any of its Affiliates or assets;
(ii) whether alone or in concert with others, acquire or agree, offer, seek or propose to acquire, or cause to be acquired, ownership (including any voting right or beneficial ownership as defined in Rule 13d-3 under the Securities Exchange Act of 1934, as amended (the “Exchange Act”)) of any voting securities of Morphic Holding or any option, forward contract, swap or other position with a value derived from securities of Morphic Holding (collectively with the transactions described in (i) above, a “Business Combination”);
(iii) make, or in any way participate in, any “solicitation” (as such terms is defined in Rule 14a-1 under the Exchange Act, including any otherwise exempt solicitation pursuant to Rule 14a-2(b) under the Exchange Act) to vote or seek to advise or influence in any manner whatsoever any person with respect to the voting of any securities of Morphic Holding;
(iv) form, join, or in any way communicate or associate with other securityholders or participate in a “group” (within the meaning of Section 13(d)(3) policies of the Exchange Act) with respect to any securities Company (including in derivative form) except as contemplated by Section 7.4 of Morphic Holding or a Business Combination involving Morphic Holding;
(v) nominate any person as a director of Morphic Holding;
(vi) propose any matter to be voted upon by the stockholders of Morphic Holdingthis Agreement); or
(vii) take any action that would, or would which could reasonably be expected to cause or require Counterparty or Morphic Holding force the Company to make a public announcement regarding a potential Business Combination, taking into account Morphic Holding’s circumstances at any of the time to the extent known to Counterparty, except for the private communications, proposals or offers as provided below.
(b) Notwithstanding anything to the contrary types of matters set forth in this Agreement, Section 12(a) shall be of no force and effect if at any time during the Standstill Period: (i) a third party commences a tender or exchange offer for at least 50% of the outstanding common shares of Morphic Holding and the Board of Directors of Morphic Holding does not publicly recommend that the stockholders of Morphic Holding reject such offer within ten (10) business days of the commencement thereof7.2; or (ii) Morphic Holding announces that it has entered enter into a definitive agreement any agreements, discussions or arrangements with a any third party with respect to a possible Business Combination in which Morphic Holding’s stockholders immediately prior to such Business Combination would retain or receive voting securities which would constitute immediately following such Business Combination less than 50% any of the combined voting power foregoing. Notwithstanding the foregoing, the Company hereby agrees that the provisions of the voting securities of the entity surviving the Business Combination or the ultimate parent company of such entity.
(c) Notwithstanding anything this Section 7.2 shall not apply to the contrary in following: the purchase by Intrexon and/or its Affiliates after the date hereof (and not pursuant to this Agreement, nothing in this Section 12 shall prevent Counterparty from: (i) having a private communication with, or making a private offer or proposal to, Morphic Holding’s CEO or Board of Directors so long as such private communication, offer or proposal, would not reasonably be expected to require a public disclosure under applicable law or the listing requirements of the primary securities exchange on which Morphic Holding’s securities are listed; provided that the contents, subject and existence of any such communications shall constitute Confidential Information hereunder; (ii) making passive investments by a pension or employee benefit plan or trust for Counterparty (or its Affiliates) employees so long as such investments (including trading) are directed by independent trustees or administrators who have not received and do not have access to Morphic Holding’s Confidential Information (including the fact that a Potential Transaction has been considered) and such investments do not require Counterparty or its Affiliates to file a Schedule 13D or 13G with the SEC with respect to Morphic Holding’s securities; (iii) acquiring the equity securities of an entity that owns securities in Morphic Holding prior to such transaction contemplated herein so long as such acquisition is not consummated for the purpose for circumventing this Section 12; or (iv) acquiring (directly or indirectly) up to an aggregate number of five percent (5%) shares of Common Stock that does not exceed 10% of the outstanding securities number of Morphic Holdingshares of Common Stock then issued and outstanding; the exercise by Intrexon and/or its Affiliates, if applicable, of any voting rights available to Company stockholders generally pursuant to any transaction described Section 7.2(a)(i) above, provided that Intrexon has not then either directly, indirectly, or as a member of a Group made, effected, initiated or caused such transaction to occur or otherwise violated this Section 7.2; the exercise by Intrexon and/or its Affiliates, if applicable, of any voting rights generally available to it or them as non-Affiliate security holders of a third party that is a participant in an action or transaction described in Section 7.2(a)(i) above, provided that Intrexon has not then either directly, indirectly, or as a member of a Group made, effected, initiated or caused such action or transaction to occur or otherwise violated this Section 7.2; any activity by Intrexon after the Company has made any public announcement of its intent to solicit or engage in any transaction which would result in a Company Sale; and making any communication to Company executive management on a confidential basis solely that Intrexon would be interested in engaging in discussions with the Company that could result in a negotiated transaction described in Section 7.2(a)(i) so long as Intrexon does not propose any such transaction or discuss or refer to potential terms thereof without the Company’s prior consent. Intrexon’s rights and the Company’s obligations under this Section 7.2 shall terminate upon the termination of the Channel Agreement.
Appears in 1 contract
Samples: Stock Purchase and Issuance Agreement (Oragenics Inc)
Standstill Provision. (a) During the 12twelve-month period commencing on last the date of execution of the Fourth Amendment to the this Agreement (the “Standstill Period”), except as otherwise provided neither AstraZeneca nor any of AstraZeneca’s controlled affiliates will, in this Agreement, Counterparty and Counterparty’s Affiliates will notany manner, directly or indirectly, and will not encourage or assist others to, without the prior written invitation of Morphic Holding’s Board of Directors:
(a) make, effect, initiate, cause or participate in (i) whether alone any acquisition of beneficial ownership of any securities of the Company or any securities (including derivatives thereof) of any subsidiary or other controlled affiliate of the Company, (ii) any acquisition of more than 5% of the assets of the Company and its subsidiaries and other controlled affiliates, on a consolidated basis, except in concert with othersthe ordinary course of business, make (iii) any proposal regardingtender offer, or otherwise be involved in, any extraordinary transactions such as a merger, consolidation, acquisition, tender offer or exchange offer, purchase of assets of businessmerger, corporate reorganizationbusiness combination, recapitalization, restructuring, or liquidation, dissolution or extraordinary transaction involving Morphic Holding the Company or any subsidiary or other controlled affiliate of the Company or involving any securities of the Company or any subsidiary or other controlled affiliate of the Company or more than 5% of the assets of the Company and its Affiliates subsidiaries and other controlled affiliates, on a consolidated basis, or assets(iv) any “solicitation” of “proxies” ( as those terms are used in the proxy rules of the Securities and Exchange Commission (“SEC”)) or consents with respect to any securities of the Company;
(iib) whether alone form, join or participate in concert with others, acquire or agree, offer, seek or propose to acquire, or cause to be acquired, ownership a “group” (including any voting right or beneficial ownership as defined in Rule 13d-3 under the Securities Exchange Act of 1934, as amended amended, and the rules promulgated thereunder (the “Exchange Act”)) of any voting securities of Morphic Holding or any option, forward contract, swap or other position with a value derived from securities of Morphic Holding (collectively with the transactions described in (i) above, a “Business Combination”);
(iii) make, or in any way participate in, any “solicitation” (as such terms is defined in Rule 14a-1 under the Exchange Act, including any otherwise exempt solicitation pursuant to Rule 14a-2(b) under the Exchange Act) to vote or seek to advise or influence in any manner whatsoever any person with respect to the voting beneficial ownership of any securities of Morphic Holdingthe Company or any subsidiary of the Company;
(ivc) formact, join, alone or in any way communicate or associate concert with other securityholders or participate in a “group” others, to seek control (within as defined under Rule 405 promulgated under the meaning Securities Act of Section 13(d)(31933, as amended, and the rules promulgated thereunder) of the Exchange Act) with respect to any securities (including in derivative form) management, board of Morphic Holding directors or a Business Combination involving Morphic Holdingpolicies of the Company;
(v) nominate any person as a director of Morphic Holding;
(vi) propose any matter to be voted upon by the stockholders of Morphic Holding; or
(viid) take any action that would, or would reasonably be expected to cause or require Counterparty or Morphic Holding the Company to make a public announcement regarding a potential Business Combinationany of the types of matters set forth in clause “(a)” of this Section 9;
(e) agree or offer to take, or knowingly encourage or propose (publicly or otherwise) the taking of, any action referred to in clause “(a)”, “(b)”, “(c)” or “(d)” of this Section 9;
(f) knowingly assist, induce or encourage any other Person to take any action of the type referred to in clause”(a)”,”(b)”, “(c)” or “(d)” or of this Section 9;
(g) enter into account Morphic Holdingany discussions, negotiations, arrangement or agreement with any other Person relating to any of the foregoing; or
(h) request or propose (either directly or indirectly) that the Company or any of the company’s circumstances at Representatives amend, waive or consider the time amendment or waiver of any provision set forth in this Section 9 (including this sub-paragraph). Notwithstanding any other provision of this Agreement to the extent known contrary, nothing in this Agreement will be deemed to Counterparty, except for the private communications, proposals or offers as provided below.
prohibit (bx) Notwithstanding anything AstraZeneca from confidentially communicating to the contrary Company’s board of directors or chief executive officer or external financial advisors any non-public proposals regarding a possible transaction of any kind (including, without limitation, submitting confidential proposals to acquire the Company) in such a manner as would not reasonably be expected to require public disclosure thereof under applicable Law or listing standards of any securities exchange applicable to the Company or its Representatives or to AstraZeneca or its Representatives, (y) AstraZeneca or any of its controlled affiliates, in the ordinary course of business, making any proposal or offer or entering into any mutually agreed commercial transaction with respect to, or otherwise consummating, any mutually agreed commercial transaction with, the Company or any of its subsidiaries or other controlled affiliates or (z) any acquisition by AstraZeneca or any of its controlled affiliates of a company or business unit thereof that “beneficially owns” (as such term is used in Rule 13d-3 of the Exchange Act) any securities of the Company or any of its subsidiaries so long as the purchase of such securities was not made on behalf of AstraZeneca or any of its controlled affiliates. The expiration of the Standstill Period will not terminate or otherwise affect any of the other provisions of this Agreement. Notwithstanding the foregoing provisions of this Section 9, Section 12(a) shall be of no force and effect if if, at any time during the Standstill Period: (i) the Company (or its board of directors) approves and enters into a definitive agreement for a Major Transaction with a third party commences that is not a controlled affiliate of AstraZeneca (an “Unaffiliated Third Party"); or (ii) if any Unaffiliated Third Party makes a tender or exchange offer for at least 50% of the outstanding common shares of Morphic Holding and the Board of Directors of Morphic Holding does not publicly recommend that the stockholders of Morphic Holding reject such offer within ten (10) business days of the commencement thereof; or (ii) Morphic Holding announces that it has entered into a definitive agreement with a third party with respect to a possible Business Combination in which Morphic Holding’s stockholders immediately prior to such Business Combination would retain or receive voting securities which would constitute immediately following such Business Combination less than 50% of the combined voting power of the voting securities of the entity surviving the Business Combination or the ultimate parent company of such entity.
(c) Notwithstanding anything to the contrary in this AgreementCompany which, nothing in this Section 12 shall prevent Counterparty from: (i) having a private communication with, or making a private offer or proposal to, Morphic Holding’s CEO or Board of Directors so long as such private communication, offer or proposalif effected, would not reasonably be expected to require a public disclosure under applicable law or the listing requirements of the primary securities exchange on which Morphic Holding’s securities are listed; provided that the contents, subject and existence of any such communications shall constitute Confidential Information hereunder; (ii) making passive investments by a pension or employee benefit plan or trust for Counterparty (or its Affiliates) employees so long as such investments (including trading) are directed by independent trustees or administrators who have not received and do not have access to Morphic Holding’s Confidential Information (including the fact that a Potential Transaction has been considered) and such investments do not require Counterparty or its Affiliates to file a Schedule 13D or 13G with the SEC with respect to Morphic Holding’s securities; (iii) acquiring the equity securities of an entity that owns securities result in Morphic Holding prior to such transaction contemplated herein so long as such acquisition is not consummated for the purpose for circumventing this Section 12; or (iv) acquiring (directly or indirectly) up to an aggregate of five percent (5%) of the outstanding securities of Morphic Holding.a
Appears in 1 contract
Samples: Reciprocal Confidentiality Agreement (CinCor Pharma, Inc.)
Standstill Provision. (a) During the 12-month period commencing on last date of execution Each of the Fourth Amendment to Sponsor and each Insider agrees with Parent that, from the Agreement (“Standstill Period”)Closing Date until the adjournment of the third annual meeting of shareholders of Parent held following the Closing, except as otherwise provided in this Agreementit, Counterparty and Counterparty’s Affiliates will he, or she shall not, and shall cause each of its, his, or her controlled Affiliates and controlled Associates and their respective principals, directors, general partners, officers, employees and agents and representatives acting on its behalf, not to, in each case directly or indirectly, and will not encourage or assist others toin any manner, without the absent prior express written invitation of Morphic Holding’s Board of Directorsor authorization by the Board:
(i) whether alone engage in any solicitation of proxies or in concert with others, make any proposal regarding, or otherwise be involved in, any extraordinary transactions such as a merger, consolidation, acquisition, tender offer or exchange offer, purchase of assets of business, corporate reorganization, recapitalization, restructuring, or liquidation, involving Morphic Holding or any of its Affiliates or assets;
(ii) whether alone or in concert with others, acquire or agree, offer, seek or propose to acquire, or cause to be acquired, ownership (including any voting right or beneficial ownership as defined in Rule 13d-3 under the Securities Exchange Act of 1934, as amended (the “Exchange Act”)) of any voting securities of Morphic Holding or any option, forward contract, swap or other position with a value derived from securities of Morphic Holding (collectively with the transactions described in (i) above, become a “Business Combination”);
(iii) make, or participant” in any way participate in, any a “solicitation” (as such terms is are defined in Rule 14a-1 under the Exchange Act, including any otherwise exempt solicitation pursuant to Rule 14a-2(b) Regulation 14A under the Exchange Act) of proxies (including, without limitation, any solicitation of consents that seeks to vote or seek to advise or influence call a special meeting of shareholders), in any manner whatsoever any person each case, with respect to the voting of any securities of Morphic Holdingthe Parent, other than the solicitation of proxies by the Parent Board member designated by Sponsor in furtherance of the recommendation of the Parent Board;
(ivii) form, join, or in any way communicate or associate with other securityholders or knowingly participate in a any “group” (within the meaning of Section 13(d)(3) of the Exchange Act) with respect to the Parent Ordinary Shares (other than a “group” that includes all or some of the members of the Sponsor Group, but does not include any securities (including in derivative form) other entities or persons that are not parties to this Sponsor Agreement as of Morphic Holding the date hereof; provided, however, that nothing herein shall limit the ability of an Affiliate of Sponsor or any Insider to join such a Business Combination involving Morphic Holding“group” following the execution of this Sponsor Agreement, so long as any such Affiliate agrees to be bound by the terms and conditions of this Sponsor Agreement);
(viii) nominate deposit any Parent Ordinary Shares in any voting trust or subject any Parent Ordinary Shares to any arrangement or agreement with respect to the voting of any Parent Ordinary Shares, other than any such voting trust, arrangement or agreement solely among the members of the Sponsor Group that are parties to this Sponsor Agreement and otherwise in accordance with this Sponsor Agreement;
(iv) seek or submit, or knowingly encourage any person as or entity to seek or submit, nomination(s) in furtherance of the appointment, election or removal of directors of Parent or seek, or knowingly encourage or take any other action with respect to the appointment, election or removal of any directors, in each case in opposition to the recommendation of the Parent Board;
(A) make any proposal for consideration by shareholders at any annual or special meeting of shareholders of Parent, (B) publicly make any offer or proposal (with or without conditions) with respect to any merger, tender (or exchange) offer, acquisition, recapitalization, restructuring, disposition or other business combination involving any member of the Sponsor Group and Parent or any of its subsidiaries, (C) publicly encourage, initiate or support any third party in making an offer or proposal with respect to any merger, tender (or exchange) offer, acquisition, recapitalization, restructuring, disposition or other business combination involving Parent or any of its subsidiaries, or (D) publicly comment on any third party proposal regarding any merger, tender (or exchange) offer, acquisition, recapitalization, restructuring, disposition, or other business combination with respect to Parent or any of its subsidiaries by such third party, other than to support the recommendation of the Parent Board, or (E) call or seek to call a director special meeting of Morphic Holdingshareholders;
(vi) propose seek, alone or in concert with others, representation on the Parent Board, except as specifically permitted under Section 2.02(c) of the BCA;
(vii) knowingly advise, knowingly encourage, knowingly support or knowingly influence any matter person or entity with respect to be voted upon the voting or disposition of any securities of Parent at any annual or special meeting of shareholders with respect to the appointment, election or removal of director(s) of Parent, other than as recommended by the stockholders of Morphic HoldingParent Board; or
(viiviii) take make any action request or submit any proposal to amend the terms of this Agreement other than through non-public communications with Parent or the Parent Board that would, or would not be reasonably be expected to cause or require Counterparty or Morphic Holding to make a trigger public announcement regarding a potential Business Combination, taking into account Morphic Holding’s circumstances at the time to the extent known to Counterparty, except disclosure obligations for the private communications, proposals or offers as provided belowany person.
(b) Notwithstanding anything to the contrary Except as expressly provided in this Agreementparagraph 2(a), Section 12(a) Sponsor and each Insider shall be of no force and effect if at entitled to vote any time during the Standstill Period: (i) a third party commences a tender or exchange offer for at least 50% of the outstanding common shares of Morphic Holding and the Board of Directors of Morphic Holding does not publicly recommend that the stockholders of Morphic Holding reject such offer within ten (10) business days of the commencement thereof; or (ii) Morphic Holding announces that it has entered into a definitive agreement with a third party with respect to a possible Business Combination Parent Ordinary Shares beneficially owned by them as each determines in which Morphic Holding’s stockholders immediately prior to such Business Combination would retain or receive voting securities which would constitute immediately following such Business Combination less than 50% of the combined voting power of the voting securities of the entity surviving the Business Combination or the ultimate parent company of such entityits sole discretion.
(c) Notwithstanding anything to For the contrary in this Agreementavoidance of doubt, nothing in this Section 12 Agreement shall prevent Counterparty from: (i) having a private communication withprevent the Sponsor from selling, contracting to sell, pledging or making a private offer otherwise disposing of, directly or proposal toindirectly, Morphic Holding’s CEO any Parent Ordinary Shares or Board of Directors so long as such private communication, offer or proposal, would not reasonably be expected to require a public disclosure under applicable law or the listing requirements of the primary securities exchange on which Morphic Holding’s securities are listed; provided that the contents, subject and existence of any such communications shall constitute Confidential Information hereunder; (ii) making passive investments prohibit or restrict any director on the Parent Board designated by Sponsor from exercising his or her rights and fiducary duties as a pension director of Parent or employee benefit plan restrict his or trust for Counterparty (or its Affiliates) employees so long as such investments (including trading) are directed by independent trustees or administrators who have not received and do not have access to Morphic Holding’s Confidential Information (including the fact that a Potential Transaction has been considered) and such investments do not require Counterparty or its Affiliates to file a Schedule 13D or 13G her discussions with the SEC with respect to Morphic Holding’s securities; (iii) acquiring the equity securities of an entity that owns securities in Morphic Holding prior to such transaction contemplated herein so long as such acquisition is not consummated for the purpose for circumventing this Section 12; or (iv) acquiring (directly or indirectly) up to an aggregate of five percent (5%) other members of the outstanding securities Parent Board and/or management, advisors, representatives or agents of Morphic HoldingParent.
Appears in 1 contract
Standstill Provision. (a) During the 12-month period commencing on last date of execution of the Fourth Amendment to the Agreement Effective Date (“Standstill Period”), except as otherwise provided in this Agreement, Counterparty Xxxxx and Counterparty’s Xxxxx’x Affiliates will not, directly or indirectly, and will not encourage or assist others to, without the prior written invitation of Morphic HoldingXxXX’s Board of Directors:
(i) whether alone or in concert with others, make any proposal regarding, or otherwise be involved in, any extraordinary transactions such as a merger, consolidation, acquisition, tender offer or exchange offer, purchase of assets of business, corporate reorganization, recapitalization, restructuring, or liquidation, involving Morphic Holding DiCE or any of its Affiliates or assets;
(ii) whether alone or in concert with others, acquire or agree, offer, seek or propose to acquire, or cause to be acquired, ownership (including any voting right or beneficial ownership as defined in Rule 13d-3 under the Securities Exchange Act of 1934, as amended (the “Exchange Act”)) of any voting securities of Morphic Holding DiCE or any option, forward contract, swap or other position with a value derived from securities of Morphic Holding DiCE (collectively with the transactions described in (i) above, a “Business Combination”);
(iii) make, or in any way participate in, any “solicitation” (as such terms is defined in Rule 14a-1 under the Exchange Act, including any otherwise exempt solicitation pursuant to Rule 14a-2(b) under the Exchange Act) to vote or seek to advise or influence in any manner whatsoever any person with respect to the voting of any securities of Morphic HoldingDiCE;
(iv) form, join, or in any way communicate or associate with other securityholders or participate in a “group” (within the meaning of Section 13(d)(3) of the Exchange Act) with respect to any securities (including in derivative form) of Morphic Holding DiCE or a Business Combination involving Morphic HoldingDiCE;
(v) nominate any person as a director of Morphic HoldingDiCE;
(vi) propose any matter to be voted upon by the stockholders of Morphic HoldingDiCE;
(vii) request DiCE (or any of its officers, directors or Representatives), directly or indirectly, to amend or waive any provision of the Article IX (including this sentence), except for private communications as provided below; or
(viiviii) take any action that would, or would reasonably be expected to might cause or require Counterparty Lilly or Morphic Holding DiCE to make a public announcement regarding a potential Business Combination, taking into account Morphic HoldingDiCE’s circumstances at the time to the extent known to CounterpartyXxxxx, except for the private communications, proposals or offers communications as provided below.
(b) Notwithstanding anything to the contrary in this Agreement, Section 12(aArticle IX(a) shall be of no force and effect if at any time during the Standstill Period: (i) a third party commences a tender or exchange offer for at least 5030% of the outstanding common shares of Morphic Holding and the Board of Directors of Morphic Holding does not publicly recommend that the stockholders of Morphic Holding reject such DiCE or there is a third party offer within ten (10) business days for all, or substantially all, of the commencement thereofassets of DiCE or of any Affiliate of DiCE ; or (ii) Morphic Holding DiCE announces that it has entered into a definitive agreement with a third party with respect to a possible Business Combination in which Morphic HoldingDiCE’s stockholders immediately prior to such Business Combination would retain or receive voting securities which would constitute immediately following such Business Combination less than 5030% of the combined voting power of the voting securities of the entity surviving the Business Combination or the ultimate parent company of such entity...
(c) Notwithstanding anything to the contrary in this Agreement, nothing in this Section 12 Article IX shall prevent Counterparty Xxxxx from: (i) having a private communication with, or making a private offer or proposal to, Morphic Holdingto DiCE’s CEO or Board of Directors so long as such private communication, offer or proposal, communication would not reasonably be expected to require a public disclosure under applicable law or the listing requirements of the primary securities exchange on which Morphic HoldingDiCE’s securities are listed; provided that the contents, subject and existence of any such communications shall constitute Confidential Information hereunder; (ii) entering into a negotiated business arrangement with DiCE in the ordinary course of business via license, collaborative arrangement or otherwise (the “Ordinary Course Transaction”) provided that in no event shall assets involved in such Ordinary Course Transaction represent a material portion of the assets of DiCE or any of its Affiliates or require public disclosure thereof (other than if a definitive agreement for such transaction is entered into between Lilly and DiCE and disclosure thereof is required by law); (iii) making passive investments by a pension or employee benefit plan or trust for Counterparty Lilly (or its Affiliates) employees so long as such investments (including trading) are directed by independent trustees or administrators who have not received and do not have access to Morphic HoldingDiCE’s Confidential Information (including the fact that a Potential Transaction has been considered) and such investments do not require Counterparty Lilly or its Affiliates to file a Schedule 13D or 13G with the SEC with respect to Morphic HoldingDiCE’s securities; (iiiiv) acquiring acquisition of the equity securities of an entity that owns securities in Morphic Holding DiCE prior to such transaction contemplated herein so long as such acquisition is not consummated for the purpose for circumventing this Section 12Article IX; or (ivv) Lilly or its affiliates acquiring (directly or indirectly) up to an aggregate of five percent (5%) of the outstanding securities of Morphic HoldingDiCE.
Appears in 1 contract
Standstill Provision. (a) During the 12one-month year period commencing on last date of execution of the Fourth Amendment to Effective Date (the Agreement (“Standstill Period”), except as otherwise provided neither Pegasystems nor any of Pegasystems’ Representatives will, in this Agreement, Counterparty and Counterparty’s Affiliates will notany manner, directly or indirectly, and will not encourage or assist others to, without the prior written invitation of Morphic Holding’s Board of Directors:
(a) make, effect, initiate, propose, cause, participate in or knowingly encourage (i) whether any acquisition of beneficial ownership of any securities of Chordiant or any securities of any subsidiary or other affiliate of Chordiant, (ii) any acquisition of any assets of Chordiant or any assets of any subsidiary or other affiliate of Chordiant, (iii) any tender offer, exchange offer, merger, business combination, recapitalization, restructuring, liquidation, dissolution or extraordinary transaction involving Chordiant or any subsidiary or other affiliate of Chordiant, or involving any securities or assets of Chordiant or any securities or assets of any subsidiary or other affiliate of Chordiant, or (iv) any “solicitation” of “proxies” (as those terms are used in the proxy rules of the Securities and Exchange Commission) or consents with respect to any securities of Chordiant; provided that, the foregoing restrictions shall not prohibit the Company in any way from making non-public offers or non-public proposals addressed to the board of directors of Chordiant;
(b) form or join a “group” (as defined in the Securities Exchange Act of 1934 and the rules promulgated thereunder) with respect to the beneficial ownership of any securities of Chordiant;
(c) act, alone or in concert with others, make any proposal regardingto seek to control the management, board of directors or otherwise be involved in, any extraordinary transactions such as a merger, consolidation, acquisition, tender offer or exchange offer, purchase policies of assets of business, corporate reorganization, recapitalization, restructuring, or liquidation, involving Morphic Holding or any of its Affiliates or assetsChordiant;
(ii) whether alone or in concert with others, acquire or agree, offer, seek or propose to acquire, or cause to be acquired, ownership (including any voting right or beneficial ownership as defined in Rule 13d-3 under the Securities Exchange Act of 1934, as amended (the “Exchange Act”)) of any voting securities of Morphic Holding or any option, forward contract, swap or other position with a value derived from securities of Morphic Holding (collectively with the transactions described in (i) above, a “Business Combination”);
(iii) make, or in any way participate in, any “solicitation” (as such terms is defined in Rule 14a-1 under the Exchange Act, including any otherwise exempt solicitation pursuant to Rule 14a-2(b) under the Exchange Act) to vote or seek to advise or influence in any manner whatsoever any person with respect to the voting of any securities of Morphic Holding;
(iv) form, join, or in any way communicate or associate with other securityholders or participate in a “group” (within the meaning of Section 13(d)(3) of the Exchange Act) with respect to any securities (including in derivative form) of Morphic Holding or a Business Combination involving Morphic Holding;
(v) nominate any person as a director of Morphic Holding;
(vi) propose any matter to be voted upon by the stockholders of Morphic Holding; or
(viid) take any action that would, or would reasonably be expected likely to cause or require Counterparty or Morphic Holding Chordiant to make a public announcement regarding a potential Business Combination, taking into account Morphic Holding’s circumstances at any of the time to the extent known to Counterparty, except for the private communications, proposals or offers as provided below.types of matters set forth in clause “(a)” of this sentence; or
(be) enter into any arrangement or agreement with any other Person relating to any of the foregoing. Notwithstanding anything to the contrary in this Agreementforegoing, Section 12(aif (A) shall be of no force and effect if at any time during the Standstill Period: Period a binding definitive acquisition agreement is executed by Chordiant and a third party (other than Pegasystems or any affiliate of Pegasystems) to effect (i) a third party commences a tender merger, recapitalization or exchange offer for at least 50% other business combination or transaction that, if consummated, would result in the holders of the outstanding common shares of Morphic Holding and the Board common stock of Directors of Morphic Holding does not publicly recommend that the stockholders of Morphic Holding reject such offer within ten (10) business days of the commencement thereof; or (ii) Morphic Holding announces that it has entered into a definitive agreement with a third party with respect to a possible Business Combination in which Morphic Holding’s stockholders Pegasystems immediately prior to such Business Combination would retain merger or receive voting securities which would constitute immediately following such Business Combination other business combination or transaction owning less than 50% of the combined outstanding voting power of such third party or the voting securities resulting entity immediately following such merger or other business combination or transaction, or (ii) a sale of all or substantially all of the entity surviving assets of Chordiant and its subsidiaries taken as a whole (each such transaction, a “Change of Control Transaction”), or (B) at any time during the Business Combination Standstill Period (1) an offer for a Change of Control Transaction that specifies a per share price is publicly announced by a third party, (2) Pegasystems requests an opportunity to meet with the board of directors of Chordiant, and (3) Chordiant does not grant such request within seven days following the date thereof or thereafter continue such discussions in good faith, then the restrictions set forth in this section 7 shall immediately terminate and cease to be of any further force or effect (it being understood that any good faith rejection by Chordiant of any offer or proposal made by Pegasystems as part of such discussions shall not cause the restrictions set forth in this section 7 to terminate). The expiration of the Standstill Period or the ultimate parent company termination of such entity.
(c) Notwithstanding anything the restrictions set forth in this section 7 will not terminate or otherwise affect any of the other provisions of this Agreement. Chordiant hereby represents and warrants to Pegasystems that, during the 12-month period prior to the contrary in date of this Agreement, nothing Chordiant has not entered into any confidentiality agreement in this Section 12 shall prevent Counterparty from: (i) having connection with a private communication with, or making Change of Control Transaction that does not a private offer or proposal to, Morphic Holding’s CEO or Board of Directors so long as such private communication, offer or proposal, would not reasonably be expected to require include a public disclosure under applicable law or the listing requirements of the primary securities exchange on which Morphic Holding’s securities are listed; provided that the contents, subject and existence of any such communications shall constitute Confidential Information hereunder; (ii) making passive investments by a pension or employee benefit plan or trust for Counterparty (or its Affiliates) employees so long as such investments (including trading) are directed by independent trustees or administrators who have not received and do not have access to Morphic Holding’s Confidential Information (including the fact that a Potential Transaction has been considered) and such investments do not require Counterparty or its Affiliates to file a Schedule 13D or 13G with the SEC with respect to Morphic Holding’s securities; (iii) acquiring the equity securities of an entity that owns securities in Morphic Holding prior to such transaction contemplated herein so long as such acquisition is not consummated for the purpose for circumventing this Section 12; or (iv) acquiring (directly or indirectly) up to an aggregate of five percent (5%) of the outstanding securities of Morphic Holdingstandstill provision.
Appears in 1 contract
Standstill Provision. Subject to the provisions of this Agreement, during the term of this Agreement, Parent and the Shareholder each agree with the Company that, without the prior approval of a majority of the Board, neither Parent nor the Shareholder will, and Parent and the Shareholder will cause each Shareholder Affiliate not to, take any of the following actions:
(a) During the 12-month period commencing on last date singly or as part of execution of the Fourth Amendment to the Agreement (“Standstill Period”)a partnership, except as otherwise provided in this Agreementlimited partnership, Counterparty and Counterparty’s Affiliates will notsyndicate or other 13D Group, directly or indirectly, and will not encourage acquire, propose to acquire, or assist others topublicly announce or otherwise disclose an intention to propose to acquire, without or offer or agree to acquire, by purchase or otherwise, Beneficial Ownership of any Securities other than as a result of any stock split, stock dividend, reclassification or any transaction with a similar effect upon the prior written invitation Common Stock or Series D Preferred Stock or the conversion of Morphic Holding’s Board of Directors:the Series D Preferred Stock;
(ib) whether deposit (either before or after the date of the execution of this Agreement) any Security in a voting trust or subject any Security to any similar arrangement or proxy with respect to the voting of such Security;
(c) make, or in any way participate, directly or indirectly, in any “solicitation” of “proxies,” or become a “Participant” in a “solicitation” (as such terms are used in Regulation 14A under the Exchange Act) to seek to advise or influence any person to vote against any proposal or director nominee recommended to the shareholders of the Company or any of its subsidiaries by at least a majority of the Board;
(d) form, join or in any way participate in a 13D Group with respect to any Security of the Company or any securities of its subsidiaries;
(e) commence (including by means of proposing or publicly announcing or otherwise disclosing an intention to propose, solicit, offer, seek to effect or negotiate) a merger, acquisition or other business combination transaction relating to the Company;
(f) initiate a “proposal,” as such term is used in Rule 14a-8 under the Exchange Act, “propose,” or otherwise solicit the approval of, one or more stockholders for a “proposal” or induce or attempt to induce any other person to initiate a “proposal;”
(g) otherwise act, alone or in concert with others, make any proposal regarding, or otherwise be involved in, any extraordinary transactions such as a merger, consolidation, acquisition, tender offer or exchange offer, purchase of assets of business, corporate reorganization, recapitalization, restructuring, or liquidation, involving Morphic Holding or any of its Affiliates or assets;
(ii) whether alone or in concert with others, acquire or agree, offer, seek or propose to acquire, or cause to be acquired, ownership (including any voting right or beneficial ownership as defined in Rule 13d-3 under the Securities Exchange Act of 1934, as amended (the “Exchange Act”)) of any voting securities of Morphic Holding or any option, forward contract, swap or other position with a value derived from securities of Morphic Holding (collectively with the transactions described in (i) above, a “Business Combination”);
(iii) make, or in any way participate in, any “solicitation” (as such terms is defined in Rule 14a-1 under the Exchange Act, including any otherwise exempt solicitation pursuant to Rule 14a-2(b) under the Exchange Act) to vote or seek to advise control or influence in any manner whatsoever any person with respect to the voting of any securities of Morphic Holding;
(iv) formmanagement, join, the Board or in any way communicate or associate with other securityholders or participate in a “group” (within the meaning of Section 13(d)(3) policies of the Exchange Act) with respect to any securities (including in derivative form) of Morphic Holding or a Business Combination involving Morphic Holding;
(v) nominate any person as a director of Morphic Holding;
(vi) propose any matter to be voted upon by the stockholders of Morphic HoldingCompany; or
(viih) take any other action that would, to seek or would reasonably be expected to cause or require Counterparty or Morphic Holding to make effect control of the Company other than in a public announcement regarding a potential Business Combination, taking into account Morphic Holding’s circumstances at manner consistent with the time to the extent known to Counterparty, except for the private communications, proposals or offers as provided below.
(b) Notwithstanding anything to the contrary in terms of this Agreement, Section 12(a) . This section shall not be of no force and effect if at any time during deemed to restrict the Standstill Period: (i) Shareholder Nominee from participating as a third party commences a tender or exchange offer for at least 50% board member in the direction of the outstanding common shares of Morphic Holding and the Board of Directors of Morphic Holding does not publicly recommend that the stockholders of Morphic Holding reject such offer within ten (10) business days of the commencement thereof; or (ii) Morphic Holding announces that it has entered into a definitive agreement with a third party with respect to a possible Business Combination in which Morphic Holding’s stockholders immediately prior to such Business Combination would retain or receive voting securities which would constitute immediately following such Business Combination less than 50% of the combined voting power of the voting securities of the entity surviving the Business Combination or the ultimate parent company of such entityCompany.
(c) Notwithstanding anything to the contrary in this Agreement, nothing in this Section 12 shall prevent Counterparty from: (i) having a private communication with, or making a private offer or proposal to, Morphic Holding’s CEO or Board of Directors so long as such private communication, offer or proposal, would not reasonably be expected to require a public disclosure under applicable law or the listing requirements of the primary securities exchange on which Morphic Holding’s securities are listed; provided that the contents, subject and existence of any such communications shall constitute Confidential Information hereunder; (ii) making passive investments by a pension or employee benefit plan or trust for Counterparty (or its Affiliates) employees so long as such investments (including trading) are directed by independent trustees or administrators who have not received and do not have access to Morphic Holding’s Confidential Information (including the fact that a Potential Transaction has been considered) and such investments do not require Counterparty or its Affiliates to file a Schedule 13D or 13G with the SEC with respect to Morphic Holding’s securities; (iii) acquiring the equity securities of an entity that owns securities in Morphic Holding prior to such transaction contemplated herein so long as such acquisition is not consummated for the purpose for circumventing this Section 12; or (iv) acquiring (directly or indirectly) up to an aggregate of five percent (5%) of the outstanding securities of Morphic Holding.
Appears in 1 contract
Standstill Provision. (a) During the 1218-month period commencing on last date of execution of the Fourth Amendment to Effective Date (the Agreement (“Standstill Period”), except as otherwise provided neither Pegasystems nor any of Pegasystems’ Representatives will, in this Agreement, Counterparty and Counterparty’s Affiliates will notany manner, directly or indirectly, and will not encourage or assist others to, without the prior written invitation of Morphic Holding’s Board of Directors:
(a) make, effect, initiate, propose, cause, participate in or knowingly encourage (i) whether any acquisition of beneficial ownership of any securities of Chordiant or any securities of any subsidiary or other affiliate of Chordiant, (ii) any acquisition of any assets of Chordiant or any assets of any subsidiary or other affiliate of Chordiant, (iii) any tender offer, exchange offer, merger, business combination, recapitalization, restructuring, liquidation, dissolution or extraordinary transaction involving Chordiant or any subsidiary or other affiliate of Chordiant, or involving any securities or assets of Chordiant or any securities or assets of any subsidiary or other affiliate of Chordiant, or (iv) any “solicitation” of “proxies” (as those terms are used in the proxy rules of the Securities and Exchange Commission) or consents with respect to any securities of Chordiant; provided that, the foregoing restrictions shall not prohibit Pegasystems in any way from making non-public offers or non-public proposals addressed to the board of directors of Chordiant;
(b) form or join a “group” (as defined in the Securities Exchange Act of 1934 and the rules promulgated thereunder) with respect to the beneficial ownership of any securities of Chordiant;
(c) act, alone or in concert with others, make any proposal regardingto seek to control the management, board of directors or otherwise be involved in, any extraordinary transactions such as a merger, consolidation, acquisition, tender offer or exchange offer, purchase policies of assets of business, corporate reorganization, recapitalization, restructuring, or liquidation, involving Morphic Holding or any of its Affiliates or assetsChordiant;
(ii) whether alone or in concert with others, acquire or agree, offer, seek or propose to acquire, or cause to be acquired, ownership (including any voting right or beneficial ownership as defined in Rule 13d-3 under the Securities Exchange Act of 1934, as amended (the “Exchange Act”)) of any voting securities of Morphic Holding or any option, forward contract, swap or other position with a value derived from securities of Morphic Holding (collectively with the transactions described in (i) above, a “Business Combination”);
(iii) make, or in any way participate in, any “solicitation” (as such terms is defined in Rule 14a-1 under the Exchange Act, including any otherwise exempt solicitation pursuant to Rule 14a-2(b) under the Exchange Act) to vote or seek to advise or influence in any manner whatsoever any person with respect to the voting of any securities of Morphic Holding;
(iv) form, join, or in any way communicate or associate with other securityholders or participate in a “group” (within the meaning of Section 13(d)(3) of the Exchange Act) with respect to any securities (including in derivative form) of Morphic Holding or a Business Combination involving Morphic Holding;
(v) nominate any person as a director of Morphic Holding;
(vi) propose any matter to be voted upon by the stockholders of Morphic Holding; or
(viid) take any action that would, or would reasonably be expected likely to cause or require Counterparty or Morphic Holding Chordiant to make a public announcement regarding a potential Business Combination, taking into account Morphic Holding’s circumstances at any of the time to the extent known to Counterparty, except for the private communications, proposals or offers as provided below.types of matters set forth in clause “(a)” of this sentence; or
(be) enter into any arrangement or agreement with any other Person relating to any of the foregoing. Notwithstanding anything to the contrary in this Agreementforegoing, Section 12(aif (A) shall be of no force and effect if at any time during the Standstill Period: Period a binding definitive acquisition agreement is executed by Chordiant and a third party (other than Pegasystems or any affiliate of Pegasystems) to effect (i) a third party commences a tender merger, recapitalization or exchange offer for at least 50% other business combination or transaction that, if consummated, would result in the holders of the outstanding common shares of Morphic Holding and the Board common stock of Directors of Morphic Holding does not publicly recommend that the stockholders of Morphic Holding reject such offer within ten (10) business days of the commencement thereof; or (ii) Morphic Holding announces that it has entered into a definitive agreement with a third party with respect to a possible Business Combination in which Morphic Holding’s stockholders Chordiant immediately prior to such Business Combination would retain merger or receive voting securities which would constitute immediately following such Business Combination other business combination or transaction owning less than 50% of the combined outstanding voting power of such third party or the voting securities resulting entity immediately following such merger or other business combination or transaction, or (ii) a sale of all or substantially all of the entity surviving assets of Chordiant and its subsidiaries taken as a whole (each such transaction, a “Change of Control Transaction”), or (B) at any time during the Business Combination Standstill Period (1) Pegasystems requests in writing an opportunity to meet with the board of directors of Chordiant, and (2) Chordiant does not grant such request within seven days following the date thereof or thereafter continue such discussions in good faith, then the restrictions set forth in this section 7 shall immediately terminate and cease to be of any further force or effect (it being understood that any good faith rejection by Chordiant of any offer or proposal made by Pegasystems as part of such discussions shall not cause the restrictions set forth in this section 7 to terminate). The expiration of the Standstill Period or the ultimate parent company termination of such entity.
(c) Notwithstanding anything the restrictions set forth in this section 7 will not terminate or otherwise affect any of the other provisions of this Agreement. Chordiant hereby represents and warrants to Pegasystems that, during the 12-month period prior to the contrary in date of this Agreement, nothing Chordiant has not entered into any confidentiality agreement in this Section 12 shall prevent Counterparty from: (i) having connection with a private communication with, or making Change of Control Transaction that does not a private offer or proposal to, Morphic Holding’s CEO or Board of Directors so long as such private communication, offer or proposal, would not reasonably be expected to require include a public disclosure under applicable law or the listing requirements of the primary securities exchange on which Morphic Holding’s securities are listed; provided that the contents, subject and existence of any such communications shall constitute Confidential Information hereunder; (ii) making passive investments by a pension or employee benefit plan or trust for Counterparty (or its Affiliates) employees so long as such investments (including trading) are directed by independent trustees or administrators who have not received and do not have access to Morphic Holding’s Confidential Information (including the fact that a Potential Transaction has been considered) and such investments do not require Counterparty or its Affiliates to file a Schedule 13D or 13G with the SEC with respect to Morphic Holding’s securities; (iii) acquiring the equity securities of an entity that owns securities in Morphic Holding prior to such transaction contemplated herein so long as such acquisition is not consummated for the purpose for circumventing this Section 12; or (iv) acquiring (directly or indirectly) up to an aggregate of five percent (5%) of the outstanding securities of Morphic Holdingstandstill provision.
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