Standstill Provisions. During the Standstill Period, unless expressly authorized in writing to do so by a majority of the members of the Board of Directors, acting through a committee of directors that qualify as “independent directors” as defined by applicable stock exchange listing rules [(which term, for this purpose, will exclude any directors nominated by the Block Sale Transferee)]1, the Block Sale Transferee shall not, and shall cause its Affiliates not to, directly or indirectly, acting alone or as part of a group: (a) make, or in any way participate in any solicitation of any proxy [(but without regard to the exclusion set forth in Rule 14a-1(l)(2)(iv) under the Exchange Act from the definition of “solicitation”)]2 to vote any Company Common Shares (or other equity securities of the Company) with respect to any matter (including, without limitation, any contested solicitation for the election of directors with respect to the Company), other than solicitations or acting as a participant in support of all of the Company’s nominees [including, without limitation, the nominees of the Block Sale Transferee pursuant to Article 5]3; (b) form, join in or in any way participate in a group (for the avoidance of doubt, the Block Sale Transferee shall not be deemed to have formed, joined in or in any way participated in a group with the Company as a result of the Block Sale Transferee’s execution of this Agreement) with respect to the Company Common Shares (or other equity securities of the Company) or deposit any Company Common Shares (or other equity securities of the Company) in a voting trust or similar arrangement or subject any Company Common Shares (or other equity securities of the Company) to any voting agreement or similar arrangement, or grant any proxy with respect to any Company Common Shares (or other equity securities of the Company) (other than to a designated representative of the 1 Note to form: bracketed language to be removed if Block Sale Transferee does not accept the board nomination rights. 2 Note to form: bracketed language to be removed if Block Sale Transferee does not accept the board nomination rights. 3 Note to form: bracketed language to be removed if Block Sale Transferee does not accept the board nomination rights. Company pursuant to a proxy statement of the Company), other than as contemplated by the Governance Agreement or the Stockholders Agreement or the transactions contemplated thereby; (c) seek to call, or to request the calling of, or call a special meeting of the stockholders of the Company, or seek to make, or make, a stockholder proposal (whether pursuant to Rule 14a-8 under the Exchange Act or otherwise) at any meeting of the stockholders of the Company, or make a request for a list of the Company’s stockholders, or[, other than pursuant to the Block Sale Transferee’s nomination rights in accordance with Article 5 of this Agreement,]4 seek election of a representative to the Board of Directors, seek to place a representative on the Board of Directors or seek the removal of any director from the Board of Directors, or otherwise acting alone, or by participating in a group, seek to control or influence the governance or policies of the Company; (d) effect or seek to effect (including, without limitation, by entering into any discussions, negotiations, agreements or understandings whether or not legally enforceable with any third Person), offer or propose (whether publicly or otherwise) to effect, or cause or participate in, or in any way assist or facilitate any other Person to effect or seek, offer or propose (whether publicly or otherwise) to effect or participate in any acquisition of any Company Common Shares (or other equity securities of the Company) (or Beneficial Ownership thereof) in excess of the Ownership Limitation, except in accordance with Section 2.1; provided, that, for the avoidance of doubt, the Block Sale Transferee is permitted to Transfer to an unaffiliated third party any Company Common Shares (or other equity securities of the Company) Beneficially Owned by the Block Sale Transferee, subject to the provisions of Article 8 hereof, if applicable; (e) effect or seek to effect (including, without limitation, by entering into any discussions, negotiations, agreements or understandings whether or not legally enforceable with any third Person), offer or propose (whether publicly or otherwise) to effect, or cause or participate in, or in any way assist or facilitate any other Person to effect or seek, offer or propose (whether publicly or otherwise) to effect or participate in (i) any tender offer or exchange offer, merger, acquisition, share exchange or other business combination involving the Company or any of its Subsidiaries, (ii) any recapitalization, restructuring, liquidation, dissolution or other extraordinary transaction with respect to the Company or any of its Subsidiaries or any material portion of its or their businesses, or (iii) any acquisition of any material assets or businesses of the Company or any of its Subsidiaries; (f) publicly disclose, or cause or, in a material manner, facilitate the public disclosure (including without limitation through the filing by it of any document or report with the SEC or any other governmental agency or any disclosure to any 4 Note to form: bracketed language to be removed if Block Sale Transferee does not accept the board nomination rights. journalist, member of the media or securities analyst) of any intent, purpose, plan or proposal to obtain any waiver, or consent under, or any amendment of, any of the provisions of Section 2.1, this Section 3.1, or Article 4 (except as described in Section 4.1) or bring any action to (i) contest the validity of Section 2.1, this Section 3.1 or Article 4, or (ii) seek a release from the restrictions contained in Section 2.1, this Section 3.1 or Article 4; (g) unless required by law, make or issue or cause to be made or issued any public disclosure, announcement or statement (including without limitation the filing of any document or report with the SEC or any other governmental agency or any disclosure to any journalist, member of the media or securities analyst) (i) in support of any solicitation described in paragraph (a) above (other than solicitations by the Company), (ii) in support of any matter described in paragraph (c) above, (iii) concerning any potential matter described in paragraph (d) above; (iv) concerning any potential matter described in paragraph (e) above; or (v) negatively commenting upon the Company’s corporate strategy, business, corporate activities, board of directors or management (for the avoidance of doubt, making any factual statement about the Company’s corporate strategy, business, corporate activities, board of directors or management shall not be prohibited by this Section 3.1(g)(v)); or (h) enter into any discussions, negotiations, agreements or understandings with any Person with respect to any of the foregoing or advise, assist or seek to persuade others to take any action with respect to any of the foregoing. Notwithstanding the foregoing, (a) [the restrictions in Sections 3.1(d), 3.1(e), 3.1(f), 3.1(g)(iii), 3.1(g)(iv), 3.1(g)(v) and 3.1(h) (to the extent it relates to any of the foregoing) shall not apply at any time that (i) the Company fails to comply in all material respects with its obligations under Article 5 hereof, which failure continues unremedied for a period of 10 business days following receipt by the Company of a written notice from the Block Sale Transferee of such failure or (ii) the Block Sale Transferee has relinquished its nomination rights pursuant to Article 5 and all Block Sale Transferee nominated directors have resigned; or (b)]5 in the event that (x) the Board of Directors determines that the Company should engage in any transaction described in Section 3.1(e)(i) or 3.1(e)(ii), the Block Sale Transferee shall be permitted to participate in such Board of Directors’ approved transaction as a shareholder on the same terms and conditions as any other shareholder of the Company, (y) the Board of Directors determines that the Company should solicit from one or more Persons or enter into discussions with one or more Persons regarding, or invites any other Person or group to make a proposal (without similarly inviting the Block Sale Transferee to make a similar proposal) with respect to an acquisition of (i) all or substantially all of the equity securities or assets of the Company or any of its Subsidiaries (by merger, tender offer or otherwise) or (ii) any material assets or businesses of the Company or any of its Subsidiaries, the Block Sale Transferee shall have the right to make a non-public competing proposal to the Board of Directors in compliance with any written procedures generally applicable to Persons making proposals provided by the Company 5 Note to form: enumerated restrictions to be removed if the Block Sale Transferee does not accept the board nomination rights. or the Board of Directors or (z) any third party that is not an Affiliate of the Block Sale Transferee makes a bona fide offer or proposal, with respect to a matter described in Section 3.1(d) or 3.1(e) above (a “Third Party Proposal”), the Block Sale Transferee (A) shall have the right to make a non-public competing proposal to the Board of Directors and may publicly announce that it has made a competing proposal to the Board of Directors so long as such public announcement does not constitute an offer or a solicitation to any recipient thereof and (B) may tender, exchange or otherwise sell or transfer its Company Common Shares (or other equity securities of the Company) to such third party in accordance with the Third Party Proposal; provided, however, that in the case of clauses (y) and (z), the Block Sale Transferee shall be prohibited from participating with, joining in a group with or providing financing to any such third party). [For the avoidance of doubt, any discussions involving the directors nominated by the Block Sale Transferee pursuant to Article 5 hereof (i) at a meeting of the Board of Directors or (ii) with management of the Company, other members of the Board of Directors or any of the Company’s advisors or representatives, in the case of clauses (i) and (ii), while acting in such directors’ capacity as members of the Board of Directors, shall not be deemed to violate any of the provisions of this Article 3.]6
Appears in 4 contracts
Samples: Governance Agreement (Diller Barry), Governance Agreement (Diller Barry), Governance Agreement (Expedia, Inc.)
Standstill Provisions. During (a) Potomac agrees that, from the date of this Agreement until the earlier of (i) the date that is (ten) 10 business days prior to the deadline for the submission of shareholder nominations for the 2013 Annual Meeting pursuant to the Company’s bylaws and (ii) the date that is one-hundred (100) days prior to the first anniversary of the 2012 Annual Meeting (the “Standstill Period”), unless expressly authorized in writing to do so by a majority neither it nor any of the members of the Board of Directors, acting through a committee of directors that qualify as “independent directors” as defined by applicable stock exchange listing rules [(which term, for this purpose, will exclude any directors nominated by the Block Sale Transferee)]1, the Block Sale Transferee shall notits Affiliates or Associates under its control or direction will, and shall it will cause each of its Affiliates and Associates under its control not to, directly or indirectly, acting alone or as part of a groupin any manner:
(ai) makesolicit, or encourage or in any way engage in any solicitation of, any proxies or consents or become a “participant” in a “solicitation” as such terms are defined in Regulation 14A under the Exchange Act of proxies or consents (including, without limitation, any solicitation of consents that seeks to call a special meeting of shareholders), in each case, with respect to securities of the Company;
(ii) advise, encourage, support or influence any person with respect to the voting or disposition of any securities of the Company at any annual or special meeting of shareholders, except in accordance with Section 1, or seek to do so;
(iii) form, join or in any way participate in any solicitation “group” (within the meaning of any proxy [(but without regard to the exclusion set forth in Rule 14a-1(l)(2)(ivSection 13(d)(3) under of the Exchange Act from the definition of “solicitation”)]2 to vote any Company Common Shares (or other equity securities of the CompanyAct) with respect to the Common Stock (other than a “group” that includes all or some of the persons identified on Exhibit A, but does not include any matter other entities or persons not identified on Exhibit A as of the date hereof); provided, however, that nothing herein shall limit the ability of an Affiliate of Potomac to join the “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;
(includingiv) deposit any Common Stock in any voting trust or subject any Common Stock to any arrangement or agreement with respect to the voting of any Common Stock, without limitationother than any such voting trust, arrangement or agreement solely among the members of Potomac and otherwise in accordance with this Agreement;
(v) seek or encourage any person to submit nominations in furtherance of a “contested solicitation solicitation” for the election or removal of directors with respect to the Company; provided, however, that nothing herein will limit the ability of Potomac to recommend a Potomac Replacement Director(s) in accordance with Section 1(j), other than solicitations or acting as a participant in support of all of the Company’s nominees [including, without limitation, the nominees of the Block Sale Transferee pursuant to Article 5]3;
(bvi) form, join in (A) make any proposal for consideration by shareholders at any annual or in any way participate in a group (for the avoidance special meeting of doubt, the Block Sale Transferee shall not be deemed to have formed, joined in or in any way participated in a group with shareholders of the Company as a result of the Block Sale Transferee’s execution of this Agreementor (B) make any offer or proposal (with or without conditions) with respect to a merger, acquisition, disposition or other business combination involving Potomac and the Company Common Shares (or other equity securities of the Company) any subsidiary or deposit any Company Common Shares (or other equity securities of the Company) in a voting trust or similar arrangement or subject any Company Common Shares (or other equity securities of the Company) to any voting agreement or similar arrangement, or grant any proxy with respect to any Company Common Shares (or other equity securities of the Company) (other than to a designated representative of the 1 Note to form: bracketed language to be removed if Block Sale Transferee does not accept the board nomination rights. 2 Note to form: bracketed language to be removed if Block Sale Transferee does not accept the board nomination rights. 3 Note to form: bracketed language to be removed if Block Sale Transferee does not accept the board nomination rights. Company pursuant to a proxy statement of the Company), other than as contemplated by the Governance Agreement or the Stockholders Agreement or the transactions contemplated thereby;
(c) seek to call, or to request the calling of, or call a special meeting of the stockholders Affiliate of the Company, or seek encourage, initiate or support any other third party in any such related activity or (C) make any public communication in opposition to make, any Company acquisition or make, a stockholder proposal (whether pursuant to Rule 14a-8 under disposition activity approved by the Exchange Act or otherwise) at any meeting of the stockholders of the Company, or make a request for a list of the Company’s stockholders, or[, other than pursuant to the Block Sale Transferee’s nomination rights in accordance with Article 5 of this Agreement,]4 seek election of a representative to the Board of Directors, seek to place a representative on the Board of Directors or seek the removal of any director from the Board of Directors, or otherwise acting alone, or by participating in a group, seek to control or influence the governance or policies of the CompanyBoard;
(dvii) effect or seek to effect (includingseek, without limitation, by entering into any discussions, negotiations, agreements or understandings whether or not legally enforceable with any third Person), offer or propose (whether publicly or otherwise) to effect, or cause or participate in, alone or in any way assist or facilitate any other Person to effect or seekconcert with others, offer or propose (whether publicly or otherwise) to effect or participate in any acquisition of any Company Common Shares (or other equity securities of representation on the Company) (or Beneficial Ownership thereof) in excess of the Ownership LimitationBoard, except as specifically contemplated in accordance with Section 2.1; provided, that, for the avoidance of doubt, the Block Sale Transferee is permitted to Transfer to an unaffiliated third party any Company Common Shares (or other equity securities of the Company) Beneficially Owned by the Block Sale Transferee, subject to the provisions of Article 8 hereof, if applicable1;
(e) effect or seek to effect (including, without limitation, by entering into any discussions, negotiations, agreements or understandings whether or not legally enforceable with any third Person), offer or propose (whether publicly or otherwise) to effect, or cause or participate in, or in any way assist or facilitate any other Person to effect or seek, offer or propose (whether publicly or otherwise) to effect or participate in (i) any tender offer or exchange offer, merger, acquisition, share exchange or other business combination involving the Company or any of its Subsidiaries, (ii) any recapitalization, restructuring, liquidation, dissolution or other extraordinary transaction with respect to the Company or any of its Subsidiaries or any material portion of its or their businesses, or (iii) any acquisition of any material assets or businesses of the Company or any of its Subsidiaries;
(f) publicly disclose, or cause or, in a material manner, facilitate the public disclosure (including without limitation through the filing by it of any document or report with the SEC or any other governmental agency or any disclosure to any 4 Note to form: bracketed language to be removed if Block Sale Transferee does not accept the board nomination rights. journalist, member of the media or securities analyst) of any intent, purpose, plan or proposal to obtain any waiver, or consent under, or any amendment of, any of the provisions of Section 2.1, this Section 3.1, or Article 4 (except as described in Section 4.1) or bring any action to (i) contest the validity of Section 2.1, this Section 3.1 or Article 4, or (ii) seek a release from the restrictions contained in Section 2.1, this Section 3.1 or Article 4;
(g) unless required by law, make or issue or cause to be made or issued any public disclosure, announcement or statement (including without limitation the filing of any document or report with the SEC or any other governmental agency or any disclosure to any journalist, member of the media or securities analyst) (i) in support of any solicitation described in paragraph (a) above (other than solicitations by the Company), (ii) in support of any matter described in paragraph (c) above, (iii) concerning any potential matter described in paragraph (d) above; (iv) concerning any potential matter described in paragraph (e) above; or (v) negatively commenting upon the Company’s corporate strategy, business, corporate activities, board of directors or management (for the avoidance of doubt, making any factual statement about the Company’s corporate strategy, business, corporate activities, board of directors or management shall not be prohibited by this Section 3.1(g)(v)); or
(hviii) enter into any discussions, negotiations, agreements arrangements or understandings with any Person third party with respect to the matters set forth in this Section 2; or
(ix) take any action which could cause or require the Company or any Affiliate of the Company to make a public announcement regarding any of the foregoing foregoing, publicly seek or adviserequest permission to do any of the foregoing, assist publicly make any request to amend, waive or terminate any provision of this Section 2 (including, without limitation, this Section 2(a)(ix), or make or seek permission to persuade others to take make any action public announcement with respect to any of the foregoing. Notwithstanding the foregoing, .
(ab) [the restrictions Nothing in Sections 3.1(d), 3.1(e), 3.1(f), 3.1(g)(iii), 3.1(g)(iv), 3.1(g)(v) and 3.1(h) (to the extent it relates to any of the foregoing) this Section 2 shall not apply at any time that prevent (i) Potomac from voting its shares of Common Stock and all shares of Common Stock represented by properly executed GOLD proxy cards in favor of the Company fails to comply Potomac Nominees at the 2012 Annual Meeting in all material respects accordance with its obligations under Article 5 hereofSection 1, which failure continues unremedied for a period of 10 business days following receipt by the Company of a written notice from the Block Sale Transferee of such failure or (ii) Potomac from taking any actions as contemplated in Section 1(f) in furtherance of reconstituting the Block Sale Transferee has relinquished its nomination rights pursuant to Article 5 and all Block Sale Transferee nominated directors have resigned; Board in a manner consistent with the composition of the Board as set forth in Section 1(a) or (b)]5 in the event that (xiii) the Board of Directors determines that the Company should engage in any transaction described in Section 3.1(e)(i) or 3.1(e)(ii), the Block Sale Transferee shall be permitted to participate in such Board of Directors’ approved transaction as a shareholder on the same terms and conditions as any other shareholder either of the Company, (y) the Board of Directors determines that the Company should solicit from one or more Persons or enter into discussions with one or more Persons regardingPotomac Nominees, or invites their respective Potomac Replacement Director, as applicable, from taking any other Person or group to make a proposal (without similarly inviting the Block Sale Transferee to make a similar proposal) with respect to an acquisition of (i) all or substantially all of the equity securities or assets action in their capacity as directors of the Company or any of its Subsidiaries (by merger, tender offer or otherwise) or (ii) any material assets or businesses of the Company or any of its Subsidiaries, the Block Sale Transferee shall have the right to make a non-public competing proposal to the Board of Directors in compliance with any written procedures generally applicable to Persons making proposals provided by the Company 5 Note to form: enumerated restrictions to be removed if the Block Sale Transferee does not accept the board nomination rights. or the Board of Directors or (z) any third party that is not an Affiliate of the Block Sale Transferee makes a bona fide offer or proposal, with respect to a matter described in Section 3.1(d) or 3.1(e) above (a “Third Party Proposal”), the Block Sale Transferee (A) shall have the right to make a non-public competing proposal to the Board of Directors and may publicly announce that it has made a competing proposal to the Board of Directors so long as such public announcement does not constitute an offer or a solicitation to any recipient thereof and (B) may tender, exchange or otherwise sell or transfer its Company Common Shares (or other equity securities of the Company) to such third party in accordance with the Third Party Proposal; provided, however, that in the case of clauses (y) and (z), the Block Sale Transferee shall be prohibited from participating with, joining in a group with or providing financing to any such third party). [For the avoidance of doubt, any discussions involving the directors nominated by the Block Sale Transferee pursuant to Article 5 hereof (i) at a meeting of the Board of Directors or (ii) with management of the Company, other members of the Board of Directors or any of the Company’s advisors or representatives, in the case of clauses (i) and (ii), while acting in such directors’ capacity as members of the Board of Directors, shall not be deemed to violate any of the provisions of this Article 3.]6their respective fiduciary duties.
Appears in 4 contracts
Samples: Settlement Agreement (Sigma Designs Inc), Settlement Agreement (Sigma Designs Inc), Settlement Agreement (Potomac Capital Management LLC)
Standstill Provisions. During 4.1 From the Standstill Period, unless expressly authorized in writing to do so by a majority date hereof until the earlier of (i) the fourth anniversary of the members Closing Date or (ii) the date on which (A) a Change of Control of TriZetto shall have occurred, or (B) TriZetto shall have publicly announced, directly or indirectly, its willingness to consider a transaction that would constitute a Change of Control of TriZetto, IMS, without the Board prior written consent of DirectorsTriZetto, acting through a committee of directors that qualify as “independent directors” as defined by applicable stock exchange listing rules [(which term, for this purpose, will exclude any directors nominated by the Block Sale Transferee)]1, the Block Sale Transferee shall not, and shall cause its not suffer or permit any Subsidiaries of IMS to, whether acting alone or in concert with others:
(a) initiate or propose any stockholder proposal or participate in the making of, or solicit stockholders for the approval of, one or more stockholder proposals relating to TriZetto;
(b) seek the removal of any directors or a change in the composition or size of the Board;
(c) form, join or participate in a Group with respect to any Shares, other than a Group consisting solely of IMS and Affiliates not toor Associates of IMS;
(d) deposit any Shares into a voting trust or (except as provided in this Agreement) subject any Shares to any arrangement or agreement with respect to the voting or Transfer thereof, other than any such trust, arrangement or agreement (i) the only parties to or beneficiaries of which are IMS or any Affiliates or Associates of IMS and (ii) the terms of which prohibit any party thereto from acting in a manner inconsistent with this Agreement; PROVIDED, that all of the Shares deposited into any such trust or subjected to any such arrangement or agreement shall be deemed to be Beneficially Owned by IMS or Affiliates or Associates of IMS for all purposes of this Agreement;
(e) except for Shares issued to IMS in connection with the Merger, acquire, offer to acquire or agree to acquire, directly or indirectly, acting alone by purchase, gift or as part otherwise, Beneficial Ownership of a group:any Shares (the "STOCK LIMITATION"); or
(af) make, or in any way participate in, directly or indirectly, any "solicitation" of "proxies" (as such terms are used in any solicitation of any proxy [(but without regard to the exclusion set forth in Rule 14a-1(l)(2)(iv) under the Exchange Act from the definition of “solicitation”)]2 to vote any Company Common Shares (rules or other equity securities regulations of the CompanySecurities Exchange Commission) with respect to vote, or seek to advise or influence any matter (including, without limitation, any contested solicitation for the election of directors person or entity with respect to the Company), other than solicitations or acting as a participant in support of all of the Company’s nominees [including, without limitation, the nominees of the Block Sale Transferee pursuant to Article 5]3;
(b) form, join in or in any way participate in a group (for the avoidance of doubt, the Block Sale Transferee shall not be deemed to have formed, joined in or in any way participated in a group with the Company as a result of the Block Sale Transferee’s execution of this Agreement) with respect to the Company Common Shares (or other equity securities of the Company) or deposit any Company Common Shares (or other equity securities of the Company) in a voting trust or similar arrangement or subject any Company Common Shares (or other equity securities of the Company) to any voting agreement or similar arrangement, or grant any proxy with respect to any Company Common Shares (or other equity securities of the Company) (other than to a designated representative of the 1 Note to form: bracketed language to be removed if Block Sale Transferee does not accept the board nomination rights. 2 Note to form: bracketed language to be removed if Block Sale Transferee does not accept the board nomination rights. 3 Note to form: bracketed language to be removed if Block Sale Transferee does not accept the board nomination rights. Company pursuant to a proxy statement of the Company), other than as contemplated by the Governance Agreement or the Stockholders Agreement or the transactions contemplated thereby;
(c) seek to call, or to request the calling of, or call a special meeting of the stockholders of the Company, or seek to make, or make, a stockholder proposal (whether pursuant to Rule 14a-8 under the Exchange Act or otherwise) at any meeting of the stockholders of the Company, or make a request for a list of the Company’s stockholders, or[, other than pursuant to the Block Sale Transferee’s nomination rights in accordance with Article 5 of this Agreement,]4 seek election of a representative to the Board of Directors, seek to place a representative on the Board of Directors or seek the removal of any director from the Board of Directors, or otherwise acting alone, or by participating in a group, seek to control or influence the governance or policies of the Company;
(d) effect or seek to effect (including, without limitation, by entering into any discussions, negotiations, agreements or understandings whether or not legally enforceable with any third Person), offer or propose (whether publicly or otherwise) to effect, or cause or participate in, or in any way assist or facilitate any other Person to effect or seek, offer or propose (whether publicly or otherwise) to effect or participate in any acquisition of any Company Common Shares (or other equity securities of the Company) (or Beneficial Ownership thereof) in excess of the Ownership Limitation, except in accordance with Section 2.1; provided, that, for the avoidance of doubt, the Block Sale Transferee is permitted to Transfer to an unaffiliated third party any Company Common Shares (or other equity securities of the Company) Beneficially Owned by the Block Sale Transferee, subject to the provisions of Article 8 hereof, if applicable;
(e) effect or seek to effect (including, without limitation, by entering into any discussions, negotiations, agreements or understandings whether or not legally enforceable with any third Person), offer or propose (whether publicly or otherwise) to effect, or cause or participate in, or in any way assist or facilitate any other Person to effect or seek, offer or propose (whether publicly or otherwise) to effect or participate in (i) any tender offer or exchange offer, merger, acquisition, share exchange or other business combination involving the Company or any of its Subsidiaries, (ii) any recapitalization, restructuring, liquidation, dissolution or other extraordinary transaction with respect to the Company or any of its Subsidiaries or any material portion of its or their businesses, or (iii) any acquisition of any material assets or businesses of the Company or any of its Subsidiaries;
(f) publicly disclose, or cause or, in a material manner, facilitate the public disclosure (including without limitation through the filing by it of any document or report with the SEC or any other governmental agency or any disclosure to any 4 Note to form: bracketed language to be removed if Block Sale Transferee does not accept the board nomination rights. journalist, member of the media or securities analyst) of any intent, purpose, plan or proposal to obtain any waiver, or consent under, or any amendment of, any Voting Securities of the provisions of Section 2.1, this Section 3.1, or Article 4 (except as described in Section 4.1) or bring any action to (i) contest the validity of Section 2.1, this Section 3.1 or Article 4, or (ii) seek a release from the restrictions contained in Section 2.1, this Section 3.1 or Article 4TriZetto;
(g) unless required by law, make or issue or cause to be made or issued any public disclosureannouncement with respect to, announcement or statement submit a proposal for, or offer of (including with or without limitation the filing of any document or report with the SEC or any other governmental agency or any disclosure to any journalist, member of the media or securities analyst) (i) in support of any solicitation described in paragraph (a) above (other than solicitations by the Companyconditions), (ii) in support of any matter described in paragraph (c) abovemerger, (iii) concerning any potential matter described in paragraph (d) above; (iv) concerning any potential matter described in paragraph (e) above; business combination, recapitalization, restructuring, liquidation or (v) negatively commenting upon the Company’s corporate strategy, business, corporate activities, board of directors other extraordinary transaction involving TriZetto or management (for the avoidance of doubt, making any factual statement about the Company’s corporate strategy, business, corporate activities, board of directors its securities or management shall not be prohibited by this Section 3.1(g)(v)); orassets;
(h) enter into take any discussions, negotiations, agreements or understandings with any Person with respect action which might force TriZetto to make a public announcement regarding any of the foregoing types of matters set forth in paragraphs (a) through (g) above;
(i) enter into discussions or advise, assist or seek to persuade others to take arrangements with any action third party with respect to any of the foregoing. Notwithstanding ;
(j) request publicly TriZetto or any of its Affiliates or Associates, directly or indirectly, to amend or waive any provision of this Section 4; or
(k) advise, assist (including by knowingly providing or arranging financing for that purpose) or knowingly encourage, induce or attempt to encourage or induce any other Person to take any actions referred to in the foregoing, foregoing paragraphs (a) [the restrictions in Sections 3.1(dthrough (j), 3.1(e), 3.1(f), 3.1(g)(iii), 3.1(g)(iv), 3.1(g)(v.
4.2 No violation of Section 4.1(e) and 3.1(h) (shall be deemed to the extent it relates to any occur as a result of the foregoing) shall not apply at acquisition by IMS, or any time that Affiliate or Associate of IMS, of Beneficial Ownership of Shares in excess of the Stock Limitation (i) as a result of (A) any stock repurchase or similar transaction undertaken by TriZetto or its Affiliates that shall cause IMS's percentage ownership in the Company fails Shares to comply exceed the Stock Limitation even though the number of Shares Beneficially Owned by IMS and its Affiliates and Associates remains unchanged; (B) any acquisition of Voting Securities of another corporation by IMS or any Affiliate or Associate of IMS in all material respects with its obligations under Article 5 hereofa BONA FIDE acquisition of a business, the primary purpose of which is not to acquire Shares, which failure continues unremedied for a period results in IMS or any such Affiliate or Associate becoming the Beneficial Owner of 10 business days following receipt by the Company of a written notice from the Block Sale Transferee of such failure additional Shares; or (C) any stock split, stock dividend or other distribution relating to Shares; or (ii) the Block Sale Transferee has relinquished its nomination rights pursuant to Article 5 and all Block Sale Transferee nominated directors have resigned; or (b)]5 in the event that (x) the Board of Directors determines that the Company should engage in any transaction described in Section 3.1(e)(i) TriZetto invites, requests or 3.1(e)(ii), the Block Sale Transferee shall be permitted to participate in such Board of Directors’ approved transaction as a shareholder on the same terms and conditions as any other shareholder of the Company, (y) the Board of Directors determines that the Company should solicit from one or more Persons or enter into discussions with one or more Persons regarding, or invites any other Person or group to make a proposal (without similarly inviting the Block Sale Transferee to make a similar proposal) with respect to an acquisition of (i) all or substantially all of the equity securities or assets of the Company otherwise solicits IMS or any of its Subsidiaries (Affiliates or Associates to acquire, offer to acquire or agree to acquire, by merger, tender offer purchase or otherwise) or (ii) , Beneficial Ownership of such Shares.
4.3 The provisions of Section 4.1 shall apply to and be binding upon any material assets or businesses Person to whom IMS Transfers Beneficial Ownership of Shares representing at least the Minimum Share Percentage as of the Company or date of such Transfer. As a condition to any of its SubsidiariesTransfer referred to in the immediately preceding sentence, the Block Sale such Transferee shall have the right shall, prior to make a non-public competing proposal to the Board of Directors such Transfer, agree in compliance with any written procedures generally applicable to Persons making proposals provided by the Company 5 Note to form: enumerated restrictions writing to be removed if the Block Sale Transferee does not accept the board nomination rights. or the Board of Directors or (z) any third party that is not an Affiliate of the Block Sale Transferee makes a bona fide offer or proposal, with respect to a matter described in Section 3.1(d) or 3.1(e) above (a “Third Party Proposal”), the Block Sale Transferee (A) shall have the right to make a non-public competing proposal to the Board of Directors and may publicly announce that it has made a competing proposal to the Board of Directors so long as such public announcement does not constitute an offer or a solicitation to any recipient thereof and (B) may tender, exchange or otherwise sell or transfer its Company Common Shares (or other equity securities of the Company) to such third party in accordance with the Third Party Proposal; provided, however, that in the case of clauses (y) and (z), the Block Sale Transferee shall be prohibited from participating with, joining in a group with or providing financing to any such third party). [For the avoidance of doubt, any discussions involving the directors nominated bound by the Block Sale Transferee pursuant to Article 5 hereof (i) at a meeting of the Board of Directors or (ii) with management of the Company, other members of the Board of Directors or any of the Company’s advisors or representatives, in the case of clauses (i) and (ii), while acting in such directors’ capacity as members of the Board of Directors, shall not be deemed to violate any of the provisions of this Article 3.]6Agreement. Any such Transfer without compliance with the immediately preceding sentence shall be null and void and such transferee shall acquire no rights with respect to such Shares.
Appears in 3 contracts
Samples: Stockholder Agreement (Ims Health Inc), Agreement and Plan of Reorganization (Trizetto Group Inc), Agreement and Plan of Reorganization (Ims Health Inc)
Standstill Provisions. During Subject to the Standstill PeriodClosing and to Section 6.2, unless expressly authorized in writing to do so by a majority of the members of the Board of Directors, acting through a committee of directors that qualify as “independent directors” as defined by applicable stock exchange listing rules [(which term, for this purpose, will exclude any directors nominated by the Block Sale Transferee)]1, the Block Sale Transferee each Restricted Stockholder shall not, and shall cause its Affiliates (other than the Company and any of the Company’s subsidiaries) not to, directly or indirectly, acting either alone or as part of a “group” (as such term is used in Rule 13d-5 (as such rule is currently in effect) of the Exchange Act), directly or indirectly:
(a) makeacquire or seek to acquire, by purchase or in otherwise, ownership (including, but not limited to, Beneficial Ownership) of (i) any way participate in any solicitation of any proxy [(but without regard to the exclusion set forth in Rule 14a-1(l)(2)(iv) under the Exchange Act from the definition of “solicitation”)]2 to vote any Company Common Shares (or other equity securities capital stock of the Company, or direct or indirect rights (including convertible securities) with respect or options to acquire such capital stock or (ii) any matter (including, without limitation, any contested solicitation for of the election of directors with respect to the Company), other than solicitations assets or acting as a participant in support of all businesses of the Company’s nominees [including, without limitation, the nominees of the Block Sale Transferee pursuant or direct or indirect rights or options to Article 5]3acquire such assets or businesses;
(b) formoffer, join in seek or in propose to enter into any way participate in transaction of merger, consolidation, sale of a group (for the avoidance of doubt, the Block Sale Transferee shall not be deemed to have formed, joined in or in any way participated in a group with the Company as a result of the Block Sale Transferee’s execution of this Agreement) with respect to the Company Common Shares (or other equity securities of the Company) or deposit any Company Common Shares (or other equity securities of the Company) in a voting trust or similar arrangement or subject any Company Common Shares (or other equity securities of the Company) to any voting agreement or similar arrangement, or grant any proxy with respect to any Company Common Shares (or other equity securities of the Company) (other than to a designated representative of the 1 Note to form: bracketed language to be removed if Block Sale Transferee does not accept the board nomination rights. 2 Note to form: bracketed language to be removed if Block Sale Transferee does not accept the board nomination rights. 3 Note to form: bracketed language to be removed if Block Sale Transferee does not accept the board nomination rights. Company pursuant to a proxy statement of the Company), other than as contemplated by the Governance Agreement or the Stockholders Agreement or the transactions contemplated thereby;
(c) seek to call, or to request the calling of, or call a special meeting of the stockholders of the Company, or seek to make, or make, a stockholder proposal (whether pursuant to Rule 14a-8 under the Exchange Act or otherwise) at any meeting of the stockholders of the Company, or make a request for a list substantial portion of the Company’s stockholders, or[, other than pursuant to the Block Sale Transferee’s nomination rights in accordance with Article 5 of this Agreement,]4 seek election of assets taken as a representative to the Board of Directors, seek to place a representative on the Board of Directors or seek the removal of any director from the Board of Directorswhole, or otherwise acting alone, or by participating in a group, seek to control or influence the governance or policies of the Company;
(d) effect or seek to effect (including, without limitation, by entering into any discussions, negotiations, agreements or understandings whether or not legally enforceable with any third Person), offer or propose (whether publicly or otherwise) to effect, or cause or participate in, or in any way assist or facilitate any other Person to effect or seek, offer or propose (whether publicly or otherwise) to effect or participate in any acquisition of any Company Common Shares (or other equity securities of the Company) (or Beneficial Ownership thereof) in excess of the Ownership Limitation, except in accordance with Section 2.1; provided, that, for the avoidance of doubt, the Block Sale Transferee is permitted to Transfer to an unaffiliated third party any Company Common Shares (or other equity securities of the Company) Beneficially Owned by the Block Sale Transferee, subject to the provisions of Article 8 hereof, if applicable;
(e) effect or seek to effect (including, without limitation, by entering into any discussions, negotiations, agreements or understandings whether or not legally enforceable with any third Person), offer or propose (whether publicly or otherwise) to effect, or cause or participate in, or in any way assist or facilitate any other Person to effect or seek, offer or propose (whether publicly or otherwise) to effect or participate in (i) any tender offer or exchange offer, merger, acquisition, share exchange or other similar business combination involving the Company or any of its SubsidiariesAffiliates, whether or not any parties other than such Restricted Stockholder and its Affiliates are involved;
(iic) make, or in any recapitalizationway participate, restructuringdirectly or indirectly, liquidationin any “solicitation” of “proxies” (as such terms are defined or used in Regulation 14A under the Exchange Act) or become a “participant” in any “election contest” (as such terms are defined or used in Rule 14a-11 under the Exchange Act) to vote, dissolution or other extraordinary transaction seek to advise or influence any person or entity with respect to the Company voting of, any voting securities of the Company, except as set forth in the Stockholders Agreement;
(d) initiate or propose any stockholder proposals for submission to a vote of its Subsidiaries stockholders, whether by action at a stockholder meeting or by written consent, with respect to the Company, or, except as provided in the Stockholders Agreement, propose any material portion person for election to the Board of its or their businessesDirectors of the Company;
(e) disclose to any third party, or (iiimake any filing under the Exchange Act, including, without limitation, under Section 13(d) thereof, disclosing, any acquisition of any material assets intention, plan or businesses of arrangement inconsistent with the Company or any of its Subsidiariesforegoing;
(f) publicly discloseexcept as provided in the Stockholders Agreement, form, join or cause or, in any way participate in a material mannergroup to take any actions, facilitate including the public disclosure (including without limitation through the filing by it of any document or report with the SEC or any other governmental agency or any disclosure to any 4 Note to form: bracketed language to be removed if Block Sale Transferee does not accept the board nomination rights. journalist, member voting of the media or securities analyst) Common Stock, otherwise prohibited by the terms of any intent, purpose, plan or proposal to obtain any waiver, or consent under, or any amendment of, any of the provisions of Section 2.1, this Section 3.1, or Article 4 (except as described in Section 4.1) or bring any action to (i) contest the validity of Section 2.1, this Section 3.1 or Article 4, or (ii) seek a release from the restrictions contained in Section 2.1, this Section 3.1 or Article 4Agreement;
(g) unless required by law, make or issue or cause to be made or issued any public disclosure, announcement or statement (including without limitation the filing of any document or report with the SEC or any other governmental agency or any disclosure to any journalist, member of the media or securities analyst) (i) in support of any solicitation described in paragraph (a) above (other than solicitations by the Company), (ii) in support of any matter described in paragraph (c) above, (iii) concerning any potential matter described in paragraph (d) above; (iv) concerning any potential matter described in paragraph (e) above; or (v) negatively commenting upon the Company’s corporate strategy, business, corporate activities, board of directors or management (for the avoidance of doubt, making any factual statement about the Company’s corporate strategy, business, corporate activities, board of directors or management shall not be prohibited by this Section 3.1(g)(v)); or
(h) enter into any discussions, negotiations, agreements arrangements or understandings with any Person with respect to any of the foregoing or advise, assist or seek to persuade others to take any action third party with respect to any of the foregoing. Notwithstanding the foregoing, ; or
(ah) [the restrictions in Sections 3.1(d), 3.1(e), 3.1(f), 3.1(g)(iii), 3.1(g)(iv), 3.1(g)(v) and 3.1(h) (to the extent it relates make any public announcement with respect to any of the foregoing) shall not apply at any time that (i) the Company fails to comply in all material respects with its obligations under Article 5 hereof, which failure continues unremedied for a period of 10 business days following receipt by the Company of a written notice from the Block Sale Transferee of such failure or (ii) the Block Sale Transferee has relinquished its nomination rights pursuant to Article 5 and all Block Sale Transferee nominated directors have resigned; or (b)]5 in the event that (x) the Board of Directors determines that the Company should engage in any transaction described in Section 3.1(e)(i) or 3.1(e)(ii), the Block Sale Transferee shall be permitted to participate in such Board of Directors’ approved transaction as a shareholder on the same terms and conditions as any other shareholder of the Company, (y) the Board of Directors determines that the Company should solicit from one or more Persons or enter into discussions with one or more Persons regarding, or invites any other Person or group to make a proposal (without similarly inviting the Block Sale Transferee to make a similar proposal) with respect to an acquisition of (i) all or substantially all of the equity securities or assets of the Company or any of its Subsidiaries (by merger, tender offer or otherwise) or (ii) any material assets or businesses of the Company or any of its Subsidiaries, the Block Sale Transferee shall have the right to make a non-public competing proposal to the Board of Directors in compliance with any written procedures generally applicable to Persons making proposals provided by the Company 5 Note to form: enumerated restrictions to be removed if the Block Sale Transferee does not accept the board nomination rights. or the Board of Directors or (z) any third party that is not an Affiliate of the Block Sale Transferee makes a bona fide offer or proposal, with respect to a matter described in Section 3.1(d) or 3.1(e) above (a “Third Party Proposal”), the Block Sale Transferee (A) shall have the right to make a non-public competing proposal to the Board of Directors and may publicly announce that it has made a competing proposal to the Board of Directors so long as such public announcement does not constitute an offer or a solicitation to any recipient thereof and (B) may tender, exchange or otherwise sell or transfer its Company Common Shares (or other equity securities of the Company) to such third party in accordance with the Third Party Proposal; provided, however, that in the case of clauses (y) and (z), the Block Sale Transferee shall be prohibited from participating with, joining in a group with or providing financing to any such third party). [For the avoidance of doubt, any discussions involving the directors nominated by the Block Sale Transferee pursuant to Article 5 hereof (i) at a meeting of the Board of Directors or (ii) with management of the Company, other members of the Board of Directors or any of the Company’s advisors or representatives, in the case of clauses (i) and (ii), while acting in such directors’ capacity as members of the Board of Directors, shall not be deemed to violate any of the provisions of this Article 3.]6.
Appears in 3 contracts
Samples: Purchase Agreement (United Auto Group Inc), Purchase Agreement (Penske Capital Partners LLC), Purchase Agreement (United Auto Group Inc)
Standstill Provisions. During (a) Subject to Section 2(b), each member of the Engine Group agrees that, from the date of this Agreement until January 1, 2017 (the “Standstill Period”), unless expressly authorized in writing to do so by a majority neither it nor any of the members of the Board of Directors, acting through a committee of directors that qualify as “independent directors” as defined by applicable stock exchange listing rules [(which term, for this purpose, will exclude any directors nominated by the Block Sale Transferee)]1, the Block Sale Transferee shall notits Affiliates or Associates will, and shall it will cause each of its Affiliates and Associates not to, directly or indirectly, acting alone or as part of a groupin any manner:
(ai) makeengage in any solicitation of proxies or consents or become a “participant” in a “solicitation” as such terms are defined in Regulation 14A under the Exchange Act of proxies or consents (including, without limitation, any solicitation of consents that seeks to call a special meeting of the Company’s shareholders), in each case, with respect to securities of the Company;
(ii) form, join or in any way participate in any solicitation “group” (within the meaning of any proxy [(but without regard to the exclusion set forth in Rule 14a-1(l)(2)(ivSection 13(d)(3) under of the Exchange Act from the definition of “solicitation”)]2 to vote any Company Common Shares (or other equity securities of the CompanyAct) with respect to the Common Stock (other than a “group” that includes all or some of the members of the Engine Group); provided, however, that nothing herein will limit the ability of an Affiliate or Associate of any matter member of the Engine Group to join its respective “group” following the execution of this Agreement, so long as any such Affiliate or Associate agrees to be bound by the terms and conditions of this Agreement;
(includingiii) deposit any Common Stock in any voting trust or subject any Common Stock to any arrangement or agreement with respect to the voting of any Common Stock, without limitationother than any such voting trust, arrangement or agreement solely among any members of the Engine Group and otherwise in accordance with this Agreement;
(iv) seek or encourage any person to submit nominations in furtherance of a “contested solicitation solicitation” for the election or removal of directors with respect to the Company)Company or seek, encourage or take any other than solicitations action with respect to the election or acting removal of any directors; provided, however, that nothing in this Agreement shall prevent any member of the Engine Group or their respective Affiliates or Associates from taking actions in furtherance of identifying director candidates in connection with the 2017 annual meeting of shareholders of the Company so long as such actions do not create a participant public disclosure obligation for any of the Parties, are undertaken on a basis reasonably designed to be confidential and are consistent with the past practices of the members of the Engine Group in support of all such circumstances;
(A) make any proposal for consideration by shareholders at any annual or special meeting of the Company’s nominees [includingshareholders, (B) make any offer or proposal (with or without limitation, the nominees of the Block Sale Transferee pursuant to Article 5]3;
(b) form, join in or in any way participate in a group (for the avoidance of doubt, the Block Sale Transferee shall not be deemed to have formed, joined in or in any way participated in a group with the Company as a result of the Block Sale Transferee’s execution of this Agreementconditions) with respect to a merger, acquisition, recapitalization, restructuring, disposition or other business combination involving the Company, or encourage, initiate or support any third party in any such activity, (C) affirmatively solicit a third party to make an offer or proposal (with or without conditions) with respect to a merger, acquisition, recapitalization, restructuring, disposition or other business combination involving the Company, or knowingly encourage, initiate or support any third party in any such activity or (D) make any public communication or comment in opposition to any merger, acquisition, recapitalization, restructuring, disposition or other business combination involving the Company Common Shares that has been approved by the Board;
(vi) vote for any director or directors for election to the Board other equity than those nominated or supported by the Board;
(vii) except in accordance with Section 1, seek, alone or in concert with others, representation on the Board;
(viii) except in accordance with Section 1, seek to advise, encourage, support or influence any person with respect to the voting or disposition of any securities of the Company) Company at any annual or deposit any Company Common Shares (or other equity securities special meeting of the Company) in a voting trust or similar arrangement or subject any Company Common Shares (or other equity securities of the Company) to any voting agreement or similar arrangement, or grant any proxy with respect to any Company Common Shares (or other equity securities of the Company) ’s shareholders (other than to a designated representative of the 1 Note to form: bracketed language to be removed if Block Sale Transferee does not accept the board nomination rights. 2 Note to form: bracketed language to be removed if Block Sale Transferee does not accept the board nomination rights. 3 Note to form: bracketed language to be removed if Block Sale Transferee does not accept the board nomination rights. Company pursuant to a proxy statement of such encouragement, support or influence that is consistent with the Company), other than as contemplated by the Governance Agreement ’s management or the Stockholders Agreement or the transactions contemplated therebyBoard’s recommendation in connection with such matter);
(cix) call, seek to call, or to request the calling call of, or call a special meeting of the stockholders of the Company, or seek to make, or make, a stockholder proposal (whether pursuant to Rule 14a-8 under the Exchange Act or otherwise) at any meeting of the stockholders of the Company’s shareholders, or make a request for a list of the Company’s stockholdersshareholders or for any books and records of the Company; provided, or[however, the New Appointees shall have the right to request stocklist materials or other than pursuant to books and records of the Block Sale Transferee’s nomination rights Company, provided that any such materials are requested solely in accordance with Article 5 of this Agreement,]4 seek election of his or her capacity as a representative to the Board of Directors, seek to place a representative on the Board of Directors or seek the removal of any director from the Board of Directors, or otherwise acting alone, or by participating in a group, seek to control or influence the governance or policies of the Company;
(dx) effect or seek acquire, announce an intention to effect (including, without limitation, by entering into any discussions, negotiations, agreements or understandings whether or not legally enforceable with any third Person)acquire, offer or propose (whether publicly to acquire, or agree to acquire, directly or indirectly, by purchase or otherwise) to effect, or cause or participate in, or in any way assist or facilitate any other Person to effect or seek, offer or propose (whether publicly or otherwise) to effect or participate in any acquisition beneficial ownership of any Company Common Shares (or other equity securities Stock of the Company) Company representing in the aggregate (or Beneficial Ownership thereofamong all members of the Engine Group and each of their respective Affiliates and Associates) in excess of the Ownership Limitation, except in accordance with Section 2.1; provided, that, for the avoidance of doubt, the Block Sale Transferee is permitted to Transfer to an unaffiliated third party any Company Common Shares (or other equity securities 9.9% of the Company) Beneficially Owned ’s then outstanding Common Stock (other than securities issued or purchased by the Block Sale TransfereeCompany pursuant to a stock split, subject stock dividend, stock repurchase or similar corporate action initiated by the Company with respect to any Common Stock beneficially owned by the provisions Engine Group on the date of Article 8 hereof, if applicablethis Agreement);
(exi) effect or seek to effect (includingother than through open market broker sale transactions where the identity of the purchaser is unknown, without limitation, by entering into any discussions, negotiations, agreements or understandings whether or not legally enforceable with any third Person)sell, offer or propose (whether publicly agree to sell, directly or indirectly, through swap or hedging transactions or otherwise) to effect, or cause or participate in, or in any way assist or facilitate any other Person to effect or seek, offer or propose (whether publicly or otherwise) to effect or participate in (i) any tender offer or exchange offer, merger, acquisition, share exchange or other business combination involving the Company or any of its Subsidiaries, (ii) any recapitalization, restructuring, liquidation, dissolution or other extraordinary transaction with respect to the Company or any of its Subsidiaries or any material portion of its or their businesses, or (iii) any acquisition of any material assets or businesses security of the Company or any right decoupled from such underlying security to any third party that would result in such third party, together with its Affiliates and Associates, owning, controlling or otherwise having any beneficial or other ownership interest of its Subsidiaries;
5% or more of the shares of Common Stock outstanding at such time, except in each case either (fA) publicly disclose, or cause or, in a material mannertransaction approved by the Board or (B) to a third party who is entitled, facilitate the public disclosure (including without limitation through the filing by it of any document or report with the SEC or any other governmental agency or any disclosure to any 4 Note to form: bracketed language and following such transaction continues to be removed if Block Sale Transferee does not accept the board nomination rights. journalistentitled, member of the media or securities analyst) of any intent, purpose, plan or proposal to obtain any waiver, or consent under, or any amendment of, any of the provisions of Section 2.1, this Section 3.1, or Article 4 (except as described in Section 4.1file statements on Schedule 13G pursuant to Rule 13d-1(b) or bring any action to (iRule 13d-1(c) contest under the validity of Section 2.1, this Section 3.1 or Article 4, or (ii) seek a release from the restrictions contained in Section 2.1, this Section 3.1 or Article 4;
(g) unless required by law, make or issue or cause to be made or issued any public disclosure, announcement or statement (including without limitation the filing of any document or report with the SEC or any other governmental agency or any disclosure to any journalist, member of the media or securities analyst) (i) in support of any solicitation described in paragraph (a) above (other than solicitations by the Company), (ii) in support of any matter described in paragraph (c) above, (iii) concerning any potential matter described in paragraph (d) above; (iv) concerning any potential matter described in paragraph (e) above; or (v) negatively commenting upon the Company’s corporate strategy, business, corporate activities, board of directors or management (for the avoidance of doubt, making any factual statement about the Company’s corporate strategy, business, corporate activities, board of directors or management shall not be prohibited by this Section 3.1(g)(v))Exchange Act; or
(hxii) enter into make any discussionsrequest or submit any proposal to amend the terms of this Agreement other than through non-public communications with the Company that would not be reasonably determined to trigger public disclosure obligations for any Party.
(b) Except as expressly provided in Section 1 or Section 2(a), negotiationseach member of the Engine Group will be entitled to:
(i) vote its shares on any other proposal unrelated to the election or removal of directors that is duly brought before the 2016 Annual Meeting; or
(ii) disclose, agreements publicly or understandings with any Person otherwise, how it intends to vote or act with respect to any of the foregoing or advise, assist or seek to persuade others to take any action with respect to any of the foregoing. Notwithstanding the foregoing, (a) [the restrictions in Sections 3.1(d), 3.1(e), 3.1(f), 3.1(g)(iii), 3.1(g)(iv), 3.1(g)(v) and 3.1(h) (to the extent it relates to any of the foregoing) shall not apply at any time that (i) the Company fails to comply in all material respects with its obligations under Article 5 hereof, which failure continues unremedied for a period of 10 business days following receipt by the Company of a written notice from the Block Sale Transferee of such failure or (ii) the Block Sale Transferee has relinquished its nomination rights pursuant to Article 5 and all Block Sale Transferee nominated directors have resigned; or (b)]5 in the event that (x) the Board of Directors determines that the Company should engage in any transaction described in Section 3.1(e)(i) or 3.1(e)(ii), the Block Sale Transferee shall be permitted to participate in such Board of Directors’ approved transaction as a shareholder on the same terms and conditions as any other shareholder securities of the Company, (y) any shareholder proposal or other matter to be voted on by the Board of Directors determines that the Company should solicit from one or more Persons or enter into discussions with one or more Persons regarding, or invites any other Person or group to make a proposal (without similarly inviting the Block Sale Transferee to make a similar proposal) with respect to an acquisition of (i) all or substantially all of the equity securities or assets shareholders of the Company or any of its Subsidiaries (by merger, tender offer or otherwise) or (ii) any material assets or businesses of and the Company or any of its Subsidiaries, the Block Sale Transferee shall have the right to make a non-public competing proposal to the Board of Directors in compliance with any written procedures generally applicable to Persons making proposals provided by the Company 5 Note to form: enumerated restrictions to be removed if the Block Sale Transferee does not accept the board nomination rights. or the Board of Directors or (z) any third party that is not an Affiliate of the Block Sale Transferee makes a bona fide offer or proposal, with respect to a matter described in Section 3.1(d) or 3.1(e) above (a “Third Party Proposal”), the Block Sale Transferee (A) shall have the right to make a non-public competing proposal to the Board of Directors and may publicly announce that it has made a competing proposal to the Board of Directors so long as such public announcement does not constitute an offer or a solicitation to any recipient thereof and (B) may tender, exchange or otherwise sell or transfer its Company Common Shares (or other equity securities of the Company) to such third party in accordance with the Third Party Proposal; provided, however, that in the case of clauses (y) and (z), the Block Sale Transferee shall be prohibited from participating with, joining in a group with or providing financing to any such third party). [For the avoidance of doubt, any discussions involving the directors nominated by the Block Sale Transferee pursuant to Article 5 hereof (i) at a meeting of the Board of Directors or (ii) with management of the Company, other members of the Board of Directors or any of the Company’s advisors or representatives, in the case of clauses (i) and (ii), while acting in such directors’ capacity as members of the Board of Directors, shall not be deemed to violate any of the provisions of this Article 3.]6reasons therefore.
Appears in 2 contracts
Samples: Shareholder Agreement (Sparton Corp), Agreement (Engine Capital, L.P.)
Standstill Provisions. During the Standstill Period(a) Unless and until this Agreement is terminated pursuant to Section 6.2, unless expressly authorized in writing and except (i) pursuant to do so by a majority of the members of the Board of Directors, acting through a committee of directors that qualify as “independent directors” as defined by applicable stock exchange listing rules [(which term, for this purpose, will exclude any directors nominated negotiated transaction approved by the Block Sale Transferee)]1Board; or (ii) as may otherwise be approved by the Board, the Block Sale Transferee shall no Requesting Person will, and each Requesting Person will cause their respective Affiliates and Associates to not, and shall cause its Affiliates not toin any manner, directly or indirectly, acting alone or as part of a group:
(ai) make, effect, initiate, cause or participate in (1) any acquisition of Beneficial Ownership of any securities of the Company or any securities of any Subsidiary or other Affiliate or Associate of the Company (except such transfers between Requesting Persons in compliance with Section 2.2), (2) any Company Acquisition Transaction, or (3) any “solicitation” of “proxies” (as those terms are defined in Rule 14a-1 of the General Rules and Regulations under the Exchange Act) or consents with respect to any securities of the Company; provided, the parties acknowledge that (x) no Requesting Person nor any of their respective Affiliates and Associates shall be deemed to make, effect, initiate, cause or participate in any way acquisition of Beneficial Ownership under subclause (1) of this clause 2.1(i) solely by reason of engaging in any event permitted by Section 2.3; (y) no Requesting Person nor any of their respective Affiliates and Associates shall be deemed to make, effect, initiate, cause or participate in any Company Acquisition Transaction under subclause (2) of this clause 2.1(i) or any solicitation of proxies under subclause (3) of this clause 2.1(i) solely by reason of a Requesting Person or such Requesting Person’s Affiliates and Associates voting its Shares in compliance with Section 3.1(a); and (z) no Requesting Person nor any of their respective Affiliates and Associates shall be deemed to make, effect, initiate, cause or participate in any solicitation of proxies under subclause (3) of this clause 2.1(i) solely by reason of any proxy [(but without regard to solicitation of a proxy, agreement or understanding from a Requesting Person or any of such Requesting Persons Affiliates and Associates regarding the exclusion set forth in Rule 14a-1(l)(2)(iv) under the Exchange Act from the definition of “solicitation”)]2 to vote any Company Common Shares (or other equity securities voting of the CompanyBeneficially Owned Shares in compliance with Sections 3.1(a) with respect to any matter (including, without limitation, any contested solicitation for the election of directors with respect to the Companyand 3.1(b), other than solicitations or acting as a participant in support of all of the Company’s nominees [including, without limitation, the nominees of the Block Sale Transferee pursuant to Article 5]3;
(bii) form, join in or in any way participate in a group (for the avoidance of doubt, the Block Sale Transferee shall not be deemed to have formed, joined in or in any way participated in a group with the Company as a result of the Block Sale Transferee’s execution of this Agreement) with respect to the Company Common Shares (or other equity securities of the Company) or deposit any Company Common Shares (or other equity securities of the Company) in a voting trust or similar arrangement or subject any Company Common Shares (or other equity securities of the Company) to any voting agreement or similar arrangement, or grant any proxy with respect to any Company Common Shares (or other equity securities of the Company) (other than to a designated representative of the 1 Note to form: bracketed language to be removed if Block Sale Transferee does not accept the board nomination rights. 2 Note to form: bracketed language to be removed if Block Sale Transferee does not accept the board nomination rights. 3 Note to form: bracketed language to be removed if Block Sale Transferee does not accept the board nomination rights. Company pursuant to a proxy statement of the Company), other than as contemplated by the Governance Agreement or the Stockholders Agreement or the transactions contemplated thereby;
(c) seek to call, or to request the calling of, or call a special meeting of the stockholders of the Company, nominate or seek to make, or make, a stockholder proposal (whether pursuant to Rule 14a-8 under the Exchange Act or otherwise) at nominate any meeting of the stockholders of the Company, or make a request for a list of the Company’s stockholders, or[, other than pursuant to the Block Sale Transferee’s nomination rights in accordance with Article 5 of this Agreement,]4 seek election of a representative person to the Board of Directors, seek to place a representative on the Board of Directors or seek the removal of any director from the Board of Directors, or otherwise acting aloneact, alone or by participating in a groupconcert with others, to seek to control or influence the governance management, Board or policies of the Company; provided that a Requesting Person may seek privately with the Board or the Company’s Chief Executive Officer to influence the decisions made by the existing management or Board of the Company in a manner (1) that is not disclosed publicly and (2) that would not force the Company to make a public announcement regarding such attempts to influence the decisions of existing management or the Board.
(iii) take any action which might force the Company to make a public announcement regarding any of the types of matters set forth in clause (i) of this Section 2.1;
(div) effect request or seek to effect propose that the Company (includingor its directors, without limitationofficers, by entering into any discussions, negotiations, agreements employees or understandings whether or not legally enforceable with any third Personagents), directly or indirectly, amend or waive any provision of this Section 2.1, including this subsection 2.1(iv), unless such request or proposal is made privately to the Board in a manner (1) that is not disclosed publicly and (2) that would not force the Company to make a public announcement regarding such request or proposal;
(v) agree or offer to take, or encourage or propose (whether publicly or otherwise) the taking of, any action referred to effectin clauses (i), (ii), (iii) or cause (iv) of this Section 2.1;
(vi) assist, induce or participate in, or in any way assist or facilitate encourage any other Person to effect take any action referred to in clauses (i), (ii), (iii) or seek, offer (iv) of this Section 2.1; or
(vii) enter into any discussions or propose (whether publicly or otherwise) arrangements with any third party with respect to effect or participate in any acquisition the taking of any Company Common Shares action referred to in clauses (i), (ii), (iii) or other equity securities (iv) of this Section 2.1.
(b) Notwithstanding the Company) (foregoing provisions of Section 2.1(a), the Requesting Persons and their respective Affiliates and Associates may from time to time in one or more transactions acquire Beneficial Ownership thereofof additional shares of Common Stock (“Additional Beneficially Owned Shares”) in excess of the Ownership Limitation, except in accordance with Section 2.1; provided, that, for the avoidance of doubt, the Block Sale Transferee is permitted to Transfer to an unaffiliated third party any Company Common Shares (or other equity securities of the Company) Current Beneficially Owned by the Block Sale TransfereeShares, subject to the provisions of Article 8 hereof, if applicable;
(e) effect or seek to effect (including, without limitation, by entering into any discussions, negotiations, agreements or understandings whether or not legally enforceable with any third Person), offer or propose (whether publicly or otherwise) to effect, or cause or participate in, or in any way assist or facilitate any other Person to effect or seek, offer or propose (whether publicly or otherwise) to effect or participate in (i) any tender offer or exchange offer, merger, acquisition, share exchange or other business combination involving the Company or any of its Subsidiaries, (ii) any recapitalization, restructuring, liquidation, dissolution or other extraordinary transaction with respect to the Company or any of its Subsidiaries or any material portion of its or their businesses, or (iii) any acquisition of any material assets or businesses of the Company or any of its Subsidiaries;
(f) publicly disclose, or cause or, in a material manner, facilitate the public disclosure (including without limitation through the filing by it of any document or report with the SEC or any other governmental agency or any disclosure to any 4 Note to form: bracketed language to be removed if Block Sale Transferee does not accept the board nomination rights. journalist, member of the media or securities analyst) of any intent, purpose, plan or proposal to obtain any waiver, or consent under, or any amendment of, any of the provisions of Section 2.1, this Section 3.1, or Article 4 (except as described in Section 4.1) or bring any action to (i) contest the validity of Section 2.1, this Section 3.1 or Article 4, or (ii) seek a release from the restrictions contained in Section 2.1, this Section 3.1 or Article 4;
(g) unless required by law, make or issue or cause to be made or issued any public disclosure, announcement or statement (including without limitation the filing of any document or report with the SEC or any other governmental agency or any disclosure to any journalist, member of the media or securities analyst) (i) in support of any solicitation described in paragraph (a) above (other than solicitations by the Company), (ii) in support of any matter described in paragraph (c) above, (iii) concerning any potential matter described in paragraph (d) above; (iv) concerning any potential matter described in paragraph (e) above; or (v) negatively commenting upon the Company’s corporate strategy, business, corporate activities, board of directors or management (for the avoidance of doubt, making any factual statement about the Company’s corporate strategy, business, corporate activities, board of directors or management shall not be prohibited by this Section 3.1(g)(v)); or
(h) enter into any discussions, negotiations, agreements or understandings with any Person with respect to any of the foregoing or advise, assist or seek to persuade others to take any action with respect to any of the foregoing. Notwithstanding the foregoing, (a) [the restrictions in Sections 3.1(d), 3.1(e), 3.1(f), 3.1(g)(iii), 3.1(g)(iv), 3.1(g)(v) and 3.1(h) (to the extent it relates to any of the foregoing) shall not apply at any time provided that (i) the Company fails to comply in all material respects with its obligations under Article 5 hereof, which failure continues unremedied for a period collective Beneficial Ownership of 10 business days following receipt by Requesting Persons and their respective Affiliates and Associates does not exceed the Company Plan Exemption Limit at the time of a written notice from the Block Sale Transferee acquisition of such failure or Beneficial Ownership of Additional Beneficially Owned Shares; (ii) the Block Sale Transferee has relinquished its nomination rights pursuant to Article 5 Requesting Persons and all Block Sale Transferee nominated directors have resigned; or (b)]5 in the event that (x) the Board of Directors determines that the Company should engage in any transaction described in Section 3.1(e)(i) or 3.1(e)(ii), the Block Sale Transferee shall be permitted to participate in such Board of Directors’ approved transaction as a shareholder on the same terms their respective Affiliates and conditions as any other shareholder of the Company, (y) the Board of Directors determines that the Company should solicit from one or more Persons or enter into discussions with one or more Persons regarding, or invites any other Person or group to make a proposal (without similarly inviting the Block Sale Transferee to make a similar proposal) with respect to an acquisition of (i) all or substantially all of the equity securities or assets of the Company or any of its Subsidiaries (by merger, tender offer or otherwise) or (ii) any material assets or businesses of the Company or any of its Subsidiaries, the Block Sale Transferee shall have the right to make a non-public competing proposal to the Board of Directors Associates are in compliance with any written procedures generally applicable to Persons making proposals provided by the Company 5 Note to form: enumerated restrictions to be removed if the Block Sale Transferee does not accept the board nomination rights. or the Board of Directors or (z) any third party that is not an Affiliate of the Block Sale Transferee makes a bona fide offer or proposal, with respect to a matter described in Section 3.1(d) or 3.1(e) above (a “Third Party Proposal”), the Block Sale Transferee (A) shall have the right to make a non-public competing proposal to the Board of Directors and may publicly announce that it has made a competing proposal to the Board of Directors so long as such public announcement does not constitute an offer or a solicitation to any recipient thereof and (B) may tender, exchange or otherwise sell or transfer its Company Common Shares (or other equity securities of the Company) to such third party in accordance with the Third Party Proposal; provided, however, that in the case of clauses (y) and (z), the Block Sale Transferee shall be prohibited from participating with, joining in a group with or providing financing to any such third party). [For the avoidance of doubt, any discussions involving the directors nominated by the Block Sale Transferee pursuant to Article 5 hereof (i) at a meeting of the Board of Directors or (ii) with management of the Company, other members of the Board of Directors or any of the Company’s advisors or representatives, in the case of clauses (i) and (ii), while acting in such directors’ capacity as members of the Board of Directors, shall not be deemed to violate any all of the provisions of this Article 3.]6Agreement as of the acquisition date of any Additional Beneficially Owned Shares; (iii) the representations and warranties of Requesting Persons and their respective Affiliates and Associates in this Agreement shall be true, accurate and complete as if made as of the date of any such acquisition of Additional Shares; (iv) the acquisition of Additional Shares would not result in any Person who is not the Requesting Persons and their respective Affiliates and Associates, individually or collectively, constituting a Section 382 5% Shareholder; and (v) the acquisition of the Additional Beneficially Owned Shares is completed prior to the Additional Beneficially Owned Shares Acquisition Window Expiration Date. Additional Beneficially Owned Shares may not be acquired after the Additional Beneficially Owned Shares Acquisition Window Expiration Date. Any acquisition of additional shares of Common Stock by the Requesting Persons or their respective Affiliates or Associates (i) will not be made with the purpose or the effect of changing or influencing the control of the Company, and (ii) will not be made in connection with (and no Requesting Persons nor any of their respective Affiliates and Associates will be a participant in) any transaction having such purpose or effect.
(c) The Requesting Persons and their respective Affiliates and Associates shall not be required to divest shares of Common Stock solely as the result of any decrease in the number of issued and outstanding shares of Common Stock (including by reason of any reverse stock split or repurchase and retirement of shares of Common Stock), even if such change causes Requesting Persons and their respective Affiliates and Associates to Beneficially Own shares of Common Stock in excess of the Plan Exemption Limit (either individually or in the aggregate).
Appears in 2 contracts
Samples: Tax Benefit Preservation Plan Exemption Agreement (Global Value Investment Corp.), Tax Benefit Preservation Plan Exemption Agreement (AutoWeb, Inc.)
Standstill Provisions. During (a) Starboard agrees that, from the date of this Agreement until the earlier of (x) December 31, 2021, and (y) the date that is fifteen (15) business days prior to the deadline for the submission of shareholder nominations for the 2022 Annual Meeting pursuant to the Amended and Restated Bylaws (the “Standstill Period”), unless expressly authorized in writing to do so by a majority of the members of the Board of Directors, acting through a committee of directors that qualify as “independent directors” as defined by applicable stock exchange listing rules [(which term, for this purpose, will exclude any directors nominated by the Block Sale Transferee)]1, the Block Sale Transferee Starboard shall not, and shall cause each of its controlled Affiliates and Associates not to, in each case directly or indirectly, acting alone or as part of a groupin any manner:
(ai) make, or in any way participate engage in any solicitation of any proxy [proxies or consents or become a “participant” in a “solicitation” (but without regard to the exclusion set forth as such terms are defined in Rule 14a-1(l)(2)(iv) Regulation 14A under the Exchange Act from the definition Act) of “solicitation”)]2 to vote any Company Common Shares (proxies or other equity securities of the Company) with respect to any matter consents (including, without limitation, any solicitation of consents that seeks to call a special meeting of shareholders), in each case, with respect to securities of the Company;
(ii) form, join, or in any way knowingly participate in any “group” (within the meaning of Section 13(d)(3) of the Exchange Act) with respect to the shares of the Common Stock (other than a “group” that includes all or some of the members of Starboard, but does not include any other entities or persons that are not members of Starboard as of the date hereof); provided, however, that nothing herein shall limit the ability of an Affiliate of Starboard to join the “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;
(iii) deposit any shares of Common Stock in any voting trust or subject any shares of Common Stock to any arrangement or agreement with respect to the voting of any shares of Common Stock, other than any such voting trust, arrangement or agreement solely among the members of Starboard and otherwise in accordance with this Agreement;
(iv) seek or submit, or knowingly encourage any person or entity to seek or submit, nomination(s) in furtherance of a “contested solicitation solicitation” for the appointment, election or removal of directors with respect to the Company)Company or seek, or knowingly encourage or take any other than solicitations action with respect to the appointment, election or acting removal of any directors, in each case in opposition to the recommendation of the Board; provided, however, that nothing in this Agreement shall prevent Starboard 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 participant public disclosure obligation for Starboard or the Company and are undertaken on a basis reasonably designed to be confidential and in support accordance in all material respects with Starboard’s normal practices in the circumstances;
(A) make any proposal for consideration by shareholders at any annual or special meeting of all shareholders of the Company’s nominees [including, (B) make any offer or proposal (with or without limitation, the nominees of the Block Sale Transferee pursuant to Article 5]3;
(b) form, join in or in any way participate in a group (for the avoidance of doubt, the Block Sale Transferee shall not be deemed to have formed, joined in or in any way participated in a group with the Company as a result of the Block Sale Transferee’s execution of this Agreementconditions) with respect to the Company Common Shares any merger, tender (or other equity securities of the Companyexchange) or deposit any Company Common Shares (or other equity securities of the Company) in a voting trust or similar arrangement or subject any Company Common Shares (or other equity securities of the Company) to any voting agreement or similar arrangement, or grant any proxy with respect to any Company Common Shares (or other equity securities of the Company) (other than to a designated representative of the 1 Note to form: bracketed language to be removed if Block Sale Transferee does not accept the board nomination rights. 2 Note to form: bracketed language to be removed if Block Sale Transferee does not accept the board nomination rights. 3 Note to form: bracketed language to be removed if Block Sale Transferee does not accept the board nomination rights. Company pursuant to a proxy statement of the Company), other than as contemplated by the Governance Agreement or the Stockholders Agreement or the transactions contemplated thereby;
(c) seek to call, or to request the calling of, or call a special meeting of the stockholders of the Company, or seek to make, or make, a stockholder proposal (whether pursuant to Rule 14a-8 under the Exchange Act or otherwise) at any meeting of the stockholders of the Company, or make a request for a list of the Company’s stockholders, or[, other than pursuant to the Block Sale Transferee’s nomination rights in accordance with Article 5 of this Agreement,]4 seek election of a representative to the Board of Directors, seek to place a representative on the Board of Directors or seek the removal of any director from the Board of Directors, or otherwise acting alone, or by participating in a group, seek to control or influence the governance or policies of the Company;
(d) effect or seek to effect (including, without limitation, by entering into any discussions, negotiations, agreements or understandings whether or not legally enforceable with any third Person), offer or propose (whether publicly or otherwise) to effect, or cause or participate in, or in any way assist or facilitate any other Person to effect or seek, offer or propose (whether publicly or otherwise) to effect or participate in any acquisition of any Company Common Shares (or other equity securities of the Company) (or Beneficial Ownership thereof) in excess of the Ownership Limitation, except in accordance with Section 2.1; provided, that, for the avoidance of doubt, the Block Sale Transferee is permitted to Transfer to an unaffiliated third party any Company Common Shares (or other equity securities of the Company) Beneficially Owned by the Block Sale Transferee, subject to the provisions of Article 8 hereof, if applicable;
(e) effect or seek to effect (including, without limitation, by entering into any discussions, negotiations, agreements or understandings whether or not legally enforceable with any third Person), offer or propose (whether publicly or otherwise) to effect, or cause or participate in, or in any way assist or facilitate any other Person to effect or seek, offer or propose (whether publicly or otherwise) to effect or participate in (i) any tender offer or exchange offer, merger, acquisition, share exchange recapitalization, restructuring, disposition or other business combination involving the Company or any of its Subsidiariessubsidiaries, (iiC) affirmatively solicit a third party to make an offer or proposal (with or without conditions) with respect to any merger, tender (or exchange) offer, acquisition, recapitalization, restructuring, liquidation, dissolution disposition or other extraordinary transaction business combination involving the Company or any of its subsidiaries, or publicly encourage, initiate or support any third party in making such an offer or proposal, (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 the Company or any of its Subsidiaries or any material portion of its or their businesses, subsidiaries by such third party prior to such proposal becoming public or (iiiE) call or seek to call a special meeting of shareholders;
(vi) seek, alone or in concert with others, representation on the Board, except as specifically permitted in Section 1;
(vii) advise, knowingly encourage, knowingly support or knowingly influence any acquisition person or entity with respect to the voting or disposition of any material assets or businesses securities of the Company at any annual or any special meeting of its Subsidiaries;shareholders or consent solicitation, with respect to the appointment, election or removal of director(s), except in accordance with Section 1; or
(fviii) publicly disclose, make any request or cause or, in a material manner, facilitate submit any proposal to amend the terms of this Agreement other than through non-public communications with the Company or the Board that would not be reasonably determined to trigger public disclosure obligations for any Party.
(including without limitation through the filing by it of any document or report with the SEC or any other governmental agency or any disclosure to any 4 Note to form: bracketed language to be removed if Block Sale Transferee does not accept the board nomination rights. journalist, member of the media or securities analystb) of any intent, purpose, plan or proposal to obtain any waiver, or consent under, or any amendment of, any of the provisions of Section 2.1, this Section 3.1, or Article 4 (except Except as described expressly provided in Section 4.1) 1 or bring any action Section 2(a), Starboard shall be entitled to (i) contest the validity vote any shares of Section 2.1, this Section 3.1 or Article 4, or Common Stock that it beneficially owns as Starboard determines in its sole discretion and (ii) seek a release from the restrictions contained in Section 2.1disclose, this Section 3.1 publicly or Article 4;
(g) unless required by lawotherwise, make how it intends to vote or issue or cause to be made or issued any public disclosure, announcement or statement (including without limitation the filing of any document or report with the SEC or any other governmental agency or any disclosure to any journalist, member of the media or securities analyst) (i) in support of any solicitation described in paragraph (a) above (other than solicitations by the Company), (ii) in support of any matter described in paragraph (c) above, (iii) concerning any potential matter described in paragraph (d) above; (iv) concerning any potential matter described in paragraph (e) above; or (v) negatively commenting upon the Company’s corporate strategy, business, corporate activities, board of directors or management (for the avoidance of doubt, making any factual statement about the Company’s corporate strategy, business, corporate activities, board of directors or management shall not be prohibited by this Section 3.1(g)(v)); or
(h) enter into any discussions, negotiations, agreements or understandings with any Person act with respect to any of the foregoing or advise, assist or seek to persuade others to take any action with respect to any of the foregoing. Notwithstanding the foregoing, (a) [the restrictions in Sections 3.1(d), 3.1(e), 3.1(f), 3.1(g)(iii), 3.1(g)(iv), 3.1(g)(v) and 3.1(h) (to the extent it relates to any of the foregoing) shall not apply at any time that (i) the Company fails to comply in all material respects with its obligations under Article 5 hereof, which failure continues unremedied for a period of 10 business days following receipt by the Company of a written notice from the Block Sale Transferee of such failure or (ii) the Block Sale Transferee has relinquished its nomination rights pursuant to Article 5 and all Block Sale Transferee nominated directors have resigned; or (b)]5 in the event that (x) the Board of Directors determines that the Company should engage in any transaction described in Section 3.1(e)(i) or 3.1(e)(ii), the Block Sale Transferee shall be permitted to participate in such Board of Directors’ approved transaction as a shareholder on the same terms and conditions as any other shareholder securities of the Company, (y) any shareholder proposal or other matter to be voted on by the Board of Directors determines that the Company should solicit from one or more Persons or enter into discussions with one or more Persons regarding, or invites any other Person or group to make a proposal (without similarly inviting the Block Sale Transferee to make a similar proposal) with respect to an acquisition of (i) all or substantially all of the equity securities or assets shareholders of the Company or any of its Subsidiaries and the reasons therefor.
(by merger, tender offer or otherwisec) or (ii) any material assets or businesses of the Company or any of its Subsidiaries, the Block Sale Transferee shall have the right to make a non-public competing proposal to the Board of Directors in compliance with any written procedures generally applicable to Persons making proposals provided by the Company 5 Note to form: enumerated restrictions to be removed if the Block Sale Transferee does not accept the board nomination rights. or the Board of Directors or (z) any third party that is not an Affiliate of the Block Sale Transferee makes a bona fide offer or proposal, with respect to a matter described Nothing in Section 3.1(d) or 3.1(e) above (a “Third Party Proposal”), the Block Sale Transferee (A2(a) shall have be deemed to limit the right to make a non-public competing proposal to the Board of Directors and may publicly announce that it has made a competing proposal to the Board of Directors so long as such public announcement does not constitute an offer exercise in good faith by any New Independent Director (or a solicitation to any recipient thereof and (BReplacement Independent Director) may tender, exchange or otherwise sell or transfer its Company Common Shares (or other equity securities of such person’s fiduciary duties solely in such person’s capacity as a director of the Company) to such third party in accordance with the Third Party Proposal; provided, however, that in the case of clauses (y) and (z), the Block Sale Transferee shall be prohibited from participating with, joining in a group with or providing financing to any such third party). [For the avoidance of doubt, any discussions involving the directors nominated by the Block Sale Transferee pursuant to Article 5 hereof (i) at a meeting of the Board of Directors or (ii) with management of the Company, other members of the Board of Directors or any of the Company’s advisors or representatives, in the case of clauses (i) and (ii), while acting in such directors’ capacity as members of the Board of Directors, shall not be deemed to violate any of the provisions of this Article 3.]6.
Appears in 2 contracts
Samples: Shareholder Agreement (eHealth, Inc.), Shareholder Agreement (Starboard Value LP)
Standstill Provisions. During the period (the “Standstill Period, unless expressly authorized ”) commencing on the date of this Agreement and ending on the date that is two (2) years from the effective date of a Form 15 filed by the Company in writing to do so by a majority respect of the members of the Board of DirectorsClass A Common Stock, acting through a committee of directors that qualify as “independent directors” as defined by applicable stock exchange listing rules [(which term, for this purpose, will exclude any directors nominated by the Block Sale Transferee)]1, the Block Sale Transferee Executive shall not, and shall cause its and direct his Family Members and Affiliates (and any Associates of the foregoing) and any other member of the Executive 13D Group not to, directly or indirectly, acting alone or as part in any manner, take any of a group:the following actions (unless prior Independent Approval has been obtained):
(a) makeacquire, offer to acquire, or cause to be acquired any ownership or other interest in any way participate in Class A Common Stock or any solicitation of Synthetic Position, or otherwise enter into any proxy [(but without regard to the exclusion set forth in Rule 14a-1(l)(2)(iv) under the Exchange Act from the definition of “solicitation”)]2 to vote any Company Common Shares contract, arrangement, understanding or relationship (or other equity securities of the Companymodify or amend any such existing contract, arrangement, understanding or relationship) with respect to any matter Class A Common Stock or any Synthetic Position, such that Executive would have Beneficial Ownership of more than (including, without limitationi) 25% of the issued and outstanding Class A Common Stock or (ii) in the event Executive’s Beneficial Ownership is greater than 25% of the issued and outstanding Class A Common Stock (after receiving prior Independent Approval hereunder), any contested solicitation for the election acquisition of directors with respect to the Company), other more than solicitations or acting as a participant in support of all 3% of the Company’s nominees [including, without limitation, issued and outstanding Class A Common Stock immediately following the nominees consummation of the Block Sale Transferee pursuant to Article 5]3such transaction;
(b) form, join in solicit proxies or in written consents of stockholders or conduct any way participate in a group other type of referendum (for the avoidance of doubt, the Block Sale Transferee shall not be deemed to have formed, joined in binding or in any way participated in a group with the Company as a result of the Block Sale Transferee’s execution of this Agreementnon-binding) 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 Company Common Shares Securities Exchange Act of 1934, as amended (the “Exchange Act”)), in or assist, advise, knowingly encourage or knowingly influence any Third Party in any “solicitation” of any proxy, consent or other authority (as such terms are defined under the Exchange Act) to vote any Voting Securities, against (or other equity securities of the Companyto withhold support for) or deposit that is intended to seek the removal of, or is in support of any “competing” nominee or slate running against, any Independent Director (as defined herein) then serving on the Board or any Company Common Shares Nominee (or other equity securities of the Company) in a voting trust or similar arrangement or subject any Company Common Shares (or other equity securities of the Company) to any voting agreement or similar arrangement, or grant any proxy with respect to any Company Common Shares (or other equity securities of the Company) (other than to a designated representative of the 1 Note to form: bracketed language to be removed if Block Sale Transferee does not accept the board nomination rights. 2 Note to form: bracketed language to be removed if Block Sale Transferee does not accept the board nomination rights. 3 Note to form: bracketed language to be removed if Block Sale Transferee does not accept the board nomination rights. Company pursuant to a proxy statement of the Companyas defined herein), other than as contemplated by the Governance Agreement or the Stockholders Agreement or the transactions contemplated thereby;
(c) seek other than through open market or block trade brokered sale transactions where (i) the identity of the purchaser is unknown to callExecutive, or to request the calling of, (ii) Executive does not directly or call a special meeting of the stockholders of the Company, or seek to make, or make, a stockholder proposal (whether pursuant to Rule 14a-8 under the Exchange Act or otherwise) at any meeting of the stockholders of the Company, or make a request for a list of the Company’s stockholders, or[, other than pursuant to the Block Sale Transferee’s nomination rights in accordance with Article 5 of this Agreement,]4 seek election of a representative to the Board of Directors, seek to place a representative on the Board of Directors or seek the removal of any director from the Board of Directors, or otherwise acting alone, or by participating in a group, seek to control indirectly select or influence the governance or policies selection of the Companypurchaser, sell, offer or agree to sell any Voting Securities of the Company to any Third Party that, to the knowledge of Executive after due inquiry, (x) has aggregate Beneficial Ownership (together with its Affiliates and Associates) of more than 9.9% of the issued and outstanding Common Stock or (y) would result in such Third Party having aggregate Beneficial Ownership (together with its Affiliates and Associates) of more than 9.9% of the issued and outstanding Common Stock;
(d) effect or seek to effect (including, without limitation, by entering into any discussions, negotiations, agreements or understandings whether or not legally enforceable with any third Person)effect, offer or propose (whether publicly or otherwise) to effect, or cause or participate in, or in any way assist assist, facilitate or facilitate encourage any other Person to effect or seek, offer or propose (whether publicly or otherwise) to effect or participate in any acquisition of any Company Common Shares (or other equity securities of the Company) (or Beneficial Ownership thereof) in excess of the Ownership Limitation, except in accordance with Section 2.1; provided, that, for the avoidance of doubt, the Block Sale Transferee is permitted to Transfer to an unaffiliated third party any Company Common Shares (or other equity securities of the Company) Beneficially Owned by the Block Sale Transferee, subject to the provisions of Article 8 hereof, if applicable;
(e) effect or seek to effect (including, without limitation, by entering into any discussions, negotiations, agreements or understandings whether or not legally enforceable with any third Person), offer or propose (whether publicly or otherwise) to effect, or cause or participate in, or in any way assist or facilitate any other Person to effect or seek, offer or propose (whether publicly or otherwise) to effect or participate in (i) any tender offer or exchange offer, merger, consolidation, acquisition, share exchange or other scheme, arrangement, business combination involving the Company or any of its Subsidiariescombination, (ii) any recapitalization, restructuringreorganization, sale or acquisition of all or a substantial portion of the Company’s assets, liquidation, dissolution or other extraordinary transaction with respect to involving the Company or any of its Subsidiaries or any material portion of its or their businesses, or (iii) any acquisition of any material assets or businesses of the Company subsidiaries or any of its Subsidiariestheir respective securities (each, an “Extraordinary Transaction”);
(e) except as is reasonably acceptable to the Company, form or join in a partnership, limited partnership, syndicate or other group, including a “group” as defined under Section 13(d) of the Exchange Act, with respect to the Voting Securities (excluding any group composed solely of Executive’s Family Members and his and their respective Affiliates and any member of the current Executive 13D Group);
(f) publicly disclose, or cause or, in a material manner, facilitate the public disclosure (including without limitation through the filing by it of any document or report with the SEC or any other governmental agency or any disclosure to any 4 Note to form: bracketed language to be removed if Block Sale Transferee does not accept the board nomination rights. journalist, member of the media or securities analyst) of any intent, purpose, plan or proposal to obtain any waiver, or consent under, or any amendment of, any of the provisions of Section 2.1, this Section 3.1, or Article 4 (except as described in Section 4.1) or bring any action to (i) contest the validity of Section 2.1, this Section 3.1 or Article 4, or (ii) seek a release from the restrictions contained in Section 2.1, this Section 3.1 or Article 4;
(g) unless required by law, make or issue or cause to be made or issued any public disclosure, announcement or statement (including without limitation the filing of any document or report with the SEC or any other governmental agency or any disclosure to any journalist, member of the media or securities analyst) (i) in support of any solicitation described in paragraph (a) above (other than solicitations by the Company), (ii) in support of any matter described in paragraph (c) above, (iii) concerning any potential matter described in paragraph (d) above; (iv) concerning any potential matter described in paragraph (e) above; or (v) negatively commenting upon the Company’s corporate strategy, business, corporate activities, board of directors or management (for the avoidance of doubt, making any factual statement about the Company’s corporate strategy, business, corporate activities, board of directors or management shall not be prohibited by this Section 3.1(g)(v)); or
(h) enter into any discussions, negotiations, agreements agreements, or understandings with any Person with respect to any of the foregoing or advise, assist or seek to persuade others to take any action Third Party with respect to any of the foregoing. Notwithstanding the foregoing, (a) [the restrictions in Sections 3.1(d)or assist, 3.1(e)advise, 3.1(f), 3.1(g)(iii), 3.1(g)(iv), 3.1(g)(v) and 3.1(h) (knowingly encourage or knowingly influence any Third Party to the extent it relates take any action or make any statement with respect to any of the foregoing, or otherwise take or knowingly cause any action, or make any statement, inconsistent with any of the foregoing; or
(g) shall not apply at any time that (i) contest the Company fails to comply in all material respects with its obligations under Article 5 hereofvalidity of, which failure continues unremedied for a period of 10 business days following receipt by the Company of a written notice from the Block Sale Transferee of such failure or (ii) the Block Sale Transferee has relinquished its nomination rights pursuant to Article 5 and all Block Sale Transferee nominated directors have resigned; or (b)]5 in the event that (x) the Board of Directors determines that the Company should engage in publicly request any transaction described in Section 3.1(e)(i) or 3.1(e)(ii)waiver of, the Block Sale Transferee shall be permitted to participate obligations set forth in such Board of Directors’ approved transaction as a shareholder on the same terms and conditions as any other shareholder of the Company, (y) the Board of Directors determines that the Company should solicit from one or more Persons or enter into discussions with one or more Persons regarding, or invites any other Person or group to make a proposal (without similarly inviting the Block Sale Transferee to make a similar proposal) with respect to an acquisition of (i) all or substantially all of the equity securities or assets of the Company or any of its Subsidiaries (by merger, tender offer or otherwise) or (ii) any material assets or businesses of the Company or any of its Subsidiaries, the Block Sale Transferee shall have the right to make a non-public competing proposal to the Board of Directors in compliance with any written procedures generally applicable to Persons making proposals provided by the Company 5 Note to form: enumerated restrictions to be removed if the Block Sale Transferee does not accept the board nomination rights. or the Board of Directors or (z) any third party that is not an Affiliate of the Block Sale Transferee makes a bona fide offer or proposal, with respect to a matter described in this Section 3.1(d) or 3.1(e) above (a “Third Party Proposal”), the Block Sale Transferee (A) shall have the right to make a non-public competing proposal to the Board of Directors and may publicly announce that it has made a competing proposal to the Board of Directors so long as such public announcement does not constitute an offer or a solicitation to any recipient thereof and (B) may tender, exchange or otherwise sell or transfer its Company Common Shares (or other equity securities of the Company) to such third party in accordance with the Third Party Proposal1; provided, however, that in the case of clauses clause (yg) and (z), the Block Sale Transferee shall be prohibited from participating with, joining in a group with or providing financing to any such third party). [For the avoidance of doubt, any discussions involving the directors nominated by the Block Sale Transferee pursuant to Article 5 hereof (i) at a meeting of the Board of Directors or (ii) with management of the Company, other members of the Board of Directors or any of the Company’s advisors or representatives, in the case of clauses (i) and (ii), while acting in such directors’ capacity as members of the Board of Directors, shall not be deemed to violate prevent Executive from defending any of claim by the Company that Executive has breached this Section 1. Notwithstanding anything in this Agreement to the contrary, the foregoing provisions of this Article 3.]6Section 1 shall not be deemed to restrict Executive in the exercise of his fiduciary duties to the Company and all of its stockholders.
Appears in 2 contracts
Samples: Cooperation Agreement (TuSimple Holdings Inc.), Cooperation Agreement (Chen Mo)
Standstill Provisions. During (a) Starboard agrees that, from the date of this Agreement until the earlier of (x) the date that is fifteen (15) business days prior to the deadline for the submission of stockholder nominations for the 2021 Annual Meeting pursuant to the Bylaws or (y) the date that is one hundred (100) days prior to the first anniversary of the 2020 Annual Meeting (the “Standstill Period”), unless expressly authorized in writing to do so by a majority of the members of the Board of Directors, acting through a committee of directors that qualify as “independent directors” as defined by applicable stock exchange listing rules [(which term, for this purpose, will exclude any directors nominated by the Block Sale Transferee)]1, the Block Sale Transferee Starboard shall not, and shall cause each of its controlled Affiliates and Associates not to, in each case directly or indirectly, acting alone or as part of a groupin any manner:
(ai) make, or in any way participate engage in any solicitation of any proxy [proxies or become a “participant” in a “solicitation” (but without regard to the exclusion set forth as such terms are defined in Rule 14a-1(l)(2)(iv) Regulation 14A under the Exchange Act from the definition Act) of “solicitation”)]2 to vote any Company Common Shares (or other equity securities of the Company) with respect to any matter proxies (including, without limitation, any solicitation of consents that seeks to call a special meeting of stockholders), in each case, with respect to securities of the Company;
(ii) form, join, or in any way knowingly participate in any “group” (within the meaning of Section 13(d)(3) of the Exchange Act) with respect to the shares of the Common Stock (other than a “group” that includes all or some of the persons or entities listed on the signature pages hereto (referred to herein as the members of Starboard), but does not include any other entities or persons that are not members of Starboard as of the date hereof); provided, however, that nothing herein shall limit the ability of an Affiliate of Starboard to join the “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;
(iii) deposit any shares of Common Stock in any voting trust or subject any shares of Common Stock to any arrangement or agreement with respect to the voting of any shares of Common Stock, other than any such voting trust, arrangement or agreement solely among the members of Starboard and otherwise in accordance with this Agreement;
(iv) seek or submit, or knowingly encourage any person or entity to seek or submit, nomination(s) in furtherance of a “contested solicitation solicitation” for the appointment, election or removal of directors with respect to the Company)Company or seek, or knowingly encourage or take any other than solicitations action with respect to the appointment, election or acting as a participant removal of any directors, in support of all each case in opposition to the recommendation of the Board; provided, however, that nothing in this Agreement shall prevent Starboard or its Affiliates or Associates from taking actions in furtherance of identifying director candidates in connection with the 2021 Annual Meeting so long as such actions do not create a public disclosure obligation for Starboard or the Company, are not publicly disclosed by Starboard or its representatives, Affiliates or Associates, and are undertaken on a basis reasonably designed to be confidential and in accordance in all material respects with Starboard’s nominees [including, without limitation, normal practices in the nominees of the Block Sale Transferee pursuant to Article 5]3circumstances;
(bA) form, join in make any proposal for consideration by stockholders at any annual or in any way participate in a group (for the avoidance special meeting of doubt, the Block Sale Transferee shall not be deemed to have formed, joined in or in any way participated in a group with stockholders of the Company as a result or through any referendum of the Block Sale Transferee’s execution of this Agreementstockholders, (B) make any offer or proposal (with or without conditions) with respect to the Company Common Shares any merger, tender (or other equity securities of the Companyexchange) or deposit any Company Common Shares (or other equity securities of the Company) in a voting trust or similar arrangement or subject any Company Common Shares (or other equity securities of the Company) to any voting agreement or similar arrangement, or grant any proxy with respect to any Company Common Shares (or other equity securities of the Company) (other than to a designated representative of the 1 Note to form: bracketed language to be removed if Block Sale Transferee does not accept the board nomination rights. 2 Note to form: bracketed language to be removed if Block Sale Transferee does not accept the board nomination rights. 3 Note to form: bracketed language to be removed if Block Sale Transferee does not accept the board nomination rights. Company pursuant to a proxy statement of the Company), other than as contemplated by the Governance Agreement or the Stockholders Agreement or the transactions contemplated thereby;
(c) seek to call, or to request the calling of, or call a special meeting of the stockholders of the Company, or seek to make, or make, a stockholder proposal (whether pursuant to Rule 14a-8 under the Exchange Act or otherwise) at any meeting of the stockholders of the Company, or make a request for a list of the Company’s stockholders, or[, other than pursuant to the Block Sale Transferee’s nomination rights in accordance with Article 5 of this Agreement,]4 seek election of a representative to the Board of Directors, seek to place a representative on the Board of Directors or seek the removal of any director from the Board of Directors, or otherwise acting alone, or by participating in a group, seek to control or influence the governance or policies of the Company;
(d) effect or seek to effect (including, without limitation, by entering into any discussions, negotiations, agreements or understandings whether or not legally enforceable with any third Person), offer or propose (whether publicly or otherwise) to effect, or cause or participate in, or in any way assist or facilitate any other Person to effect or seek, offer or propose (whether publicly or otherwise) to effect or participate in any acquisition of any Company Common Shares (or other equity securities of the Company) (or Beneficial Ownership thereof) in excess of the Ownership Limitation, except in accordance with Section 2.1; provided, that, for the avoidance of doubt, the Block Sale Transferee is permitted to Transfer to an unaffiliated third party any Company Common Shares (or other equity securities of the Company) Beneficially Owned by the Block Sale Transferee, subject to the provisions of Article 8 hereof, if applicable;
(e) effect or seek to effect (including, without limitation, by entering into any discussions, negotiations, agreements or understandings whether or not legally enforceable with any third Person), offer or propose (whether publicly or otherwise) to effect, or cause or participate in, or in any way assist or facilitate any other Person to effect or seek, offer or propose (whether publicly or otherwise) to effect or participate in (i) any tender offer or exchange offer, merger, acquisition, share exchange recapitalization, restructuring, disposition or other business combination involving the Company or any of its Subsidiariessubsidiaries, (iiC) affirmatively solicit a third party to make an offer or proposal (with or without conditions) with respect to any merger, tender (or exchange) offer, acquisition, recapitalization, restructuring, liquidation, dissolution disposition or other extraordinary transaction business combination involving the Company or any of its subsidiaries, or publicly encourage, initiate or support any third party in making such an offer or proposal, (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 the Company or any of its Subsidiaries or any material portion of its or their businesses, subsidiaries by such third party prior to such proposal becoming public or (iiiE) call or seek to call a special meeting of stockholders;
(vi) seek, alone or in concert with others, representation on the Board, except as specifically permitted in Section 1;
(vii) advise, knowingly encourage, support or knowingly influence any acquisition person or entity with respect to the voting or disposition of any material assets or businesses securities of the Company at any annual or any special meeting of its Subsidiaries;stockholders, except in accordance with Section 1; or
(fviii) publicly disclose, make any request or cause or, in a material manner, facilitate submit any proposal to amend the terms of this Agreement other than through non-public communications with the Company or the Board that would not be reasonably determined to trigger public disclosure obligations for any Party.
(including without limitation through the filing by it of any document or report with the SEC or any other governmental agency or any disclosure to any 4 Note to form: bracketed language to be removed if Block Sale Transferee does not accept the board nomination rights. journalist, member of the media or securities analystb) of any intent, purpose, plan or proposal to obtain any waiver, or consent under, or any amendment of, any of the provisions of Section 2.1, this Section 3.1, or Article 4 (except Except as described expressly provided in Section 4.1) 1 or bring any action Section 2(a), Starboard shall be entitled to (i) contest the validity vote any shares of Section 2.1, this Section 3.1 or Article 4, or Common Stock that it beneficially owns as Starboard determines in its sole discretion and (ii) seek a release from the restrictions contained in Section 2.1disclose, this Section 3.1 publicly or Article 4;
(g) unless required by lawotherwise, make how it intends to vote or issue or cause to be made or issued any public disclosure, announcement or statement (including without limitation the filing of any document or report with the SEC or any other governmental agency or any disclosure to any journalist, member of the media or securities analyst) (i) in support of any solicitation described in paragraph (a) above (other than solicitations by the Company), (ii) in support of any matter described in paragraph (c) above, (iii) concerning any potential matter described in paragraph (d) above; (iv) concerning any potential matter described in paragraph (e) above; or (v) negatively commenting upon the Company’s corporate strategy, business, corporate activities, board of directors or management (for the avoidance of doubt, making any factual statement about the Company’s corporate strategy, business, corporate activities, board of directors or management shall not be prohibited by this Section 3.1(g)(v)); or
(h) enter into any discussions, negotiations, agreements or understandings with any Person act with respect to any of the foregoing or advise, assist or seek to persuade others to take any action with respect to any of the foregoing. Notwithstanding the foregoing, (a) [the restrictions in Sections 3.1(d), 3.1(e), 3.1(f), 3.1(g)(iii), 3.1(g)(iv), 3.1(g)(v) and 3.1(h) (to the extent it relates to any of the foregoing) shall not apply at any time that (i) the Company fails to comply in all material respects with its obligations under Article 5 hereof, which failure continues unremedied for a period of 10 business days following receipt by the Company of a written notice from the Block Sale Transferee of such failure or (ii) the Block Sale Transferee has relinquished its nomination rights pursuant to Article 5 and all Block Sale Transferee nominated directors have resigned; or (b)]5 in the event that (x) the Board of Directors determines that the Company should engage in any transaction described in Section 3.1(e)(i) or 3.1(e)(ii), the Block Sale Transferee shall be permitted to participate in such Board of Directors’ approved transaction as a shareholder on the same terms and conditions as any other shareholder securities of the Company, (y) any stockholder proposal or other matter to be voted on by the Board of Directors determines that the Company should solicit from one or more Persons or enter into discussions with one or more Persons regarding, or invites any other Person or group to make a proposal (without similarly inviting the Block Sale Transferee to make a similar proposal) with respect to an acquisition of (i) all or substantially all of the equity securities or assets stockholders of the Company and the reasons therefor.
(c) Nothing in Section 2(a) shall be deemed to limit the exercise in good faith by any Starboard Independent Appointee (or any a Starboard Replacement Director) of its Subsidiaries (by merger, tender offer or otherwise) or (ii) any material assets or businesses such person’s fiduciary duties solely in such person’s capacity as a director of the Company or any of its Subsidiaries, the Block Sale Transferee shall have the right to make a non-public competing proposal to the Board of Directors in compliance with any written procedures generally applicable to Persons making proposals provided by the Company 5 Note to form: enumerated restrictions to be removed if the Block Sale Transferee does not accept the board nomination rights. or the Board of Directors or (z) any third party that is not an Affiliate of the Block Sale Transferee makes a bona fide offer or proposal, with respect to a matter described in Section 3.1(d) or 3.1(e) above (a “Third Party Proposal”), the Block Sale Transferee (A) shall have the right to make a non-public competing proposal to the Board of Directors and may publicly announce that it has made a competing proposal to the Board of Directors so long as such public announcement does not constitute an offer or a solicitation to any recipient thereof and (B) may tender, exchange or otherwise sell or transfer its Company Common Shares (or other equity securities of the Company) to such third party in accordance with the Third Party Proposal; provided, however, that in the case of clauses (y) and (z), the Block Sale Transferee shall be prohibited from participating with, joining in a group manner consistent with or providing financing to any such third party). [For the avoidance of doubt, any discussions involving the directors nominated by the Block Sale Transferee pursuant to Article 5 hereof (i) at a meeting of the Board of Directors or (ii) with management of the Company, other members of the Board of Directors or any of the Companyperson’s advisors or representatives, in the case of clauses (i) and (ii), while acting in such directors’ capacity as members of the Board of Directors, shall not be deemed to violate any of the provisions of Starboard’s obligations under this Article 3.]6Agreement.
Appears in 2 contracts
Samples: Agreement (Starboard Value LP), Shareholder Agreement (Commvault Systems Inc)
Standstill Provisions. During (a) Starboard agrees that, from the date of this Agreement until the earlier of (x) the date that is fifteen (15) business days prior to the deadline for the submission of stockholder nominations for the 2021 Annual Meeting pursuant to the Bylaws or (y) the date that is one hundred (100) days prior to the first anniversary of the 2020 Annual Meeting (the “Standstill Period”), unless expressly authorized in writing to do so by a majority of the members of the Board of Directors, acting through a committee of directors that qualify as “independent directors” as defined by applicable stock exchange listing rules [(which term, for this purpose, will exclude any directors nominated by the Block Sale Transferee)]1, the Block Sale Transferee Starboard shall not, and shall cause each of its controlled Affiliates and Associates not to, in each case directly or indirectly, acting alone or as part of a groupin any manner:
(ai) make, or in any way participate engage in any solicitation of any proxy [proxies or become a “participant” in a “solicitation” (but without regard to the exclusion set forth as such terms are defined in Rule 14a-1(l)(2)(iv) Regulation 14A under the Exchange Act from the definition Act) of “solicitation”)]2 to vote any Company Common Shares (or other equity securities of the Company) with respect to any matter proxies (including, without limitation, any solicitation of consents that seeks to call a special meeting of stockholders), in each case, with respect to securities of the Company;
(ii) form, join, or in any way knowingly participate in any “group” (within the meaning of Section 13(d)(3) of the Exchange Act) with respect to the shares of the Common Stock (other than a “group” that includes all or some of the members of Starboard, but does not include any other entities or persons that are not members of Starboard as of the date hereof); provided, however, that nothing herein shall limit the ability of an Affiliate of Starboard to join the “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;
(iii) deposit any shares of Common Stock in any voting trust or subject any shares of Common Stock to any arrangement or agreement with respect to the voting of any shares of Common Stock, other than any such voting trust, arrangement or agreement solely among the members of Starboard and otherwise in accordance with this Agreement;
(iv) seek or submit, or knowingly encourage any person or entity to seek or submit, nomination(s) in furtherance of a “contested solicitation solicitation” for the appointment, election or removal of directors with respect to the Company)Company or seek, or knowingly encourage or take any other than solicitations action with respect to the appointment, election or acting as a participant removal of any directors, in support of all each case in opposition to the recommendation of the CompanyBoard; provided, however, that nothing in this Agreement shall prevent Starboard or its Affiliates or Associates from taking actions in furtherance of identifying director candidates in connection with the 2021 Annual Meeting so long as such actions do not create a public disclosure obligation for Starboard or the Company and are undertaken on a basis reasonably designed to be confidential and in accordance in all material respects with Starboard’s nominees [including, without limitation, normal practices in the nominees of the Block Sale Transferee pursuant to Article 5]3circumstances;
(bA) form, join in make any proposal for consideration by stockholders at any annual or in any way participate in a group (for the avoidance special meeting of doubt, the Block Sale Transferee shall not be deemed to have formed, joined in or in any way participated in a group with stockholders of the Company as or through any referendum of stockholders, (B) 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 Starboard and the Company, (C) affirmatively solicit a result of third party to make an 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 the Block Sale Transferee’s execution of this AgreementCompany, or publicly encourage, initiate or support any third party in making such an offer or proposal, (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 the Company Common Shares (or other equity securities of the Company) or deposit any Company Common Shares (or other equity securities of the Company) in a voting trust or similar arrangement or subject any Company Common Shares (or other equity securities of the Company) by such third party prior to any voting agreement or similar arrangementsuch proposal becoming public, or grant any proxy with respect to any Company Common Shares (E) call or other equity securities of the Company) (other than to a designated representative of the 1 Note to form: bracketed language to be removed if Block Sale Transferee does not accept the board nomination rights. 2 Note to form: bracketed language to be removed if Block Sale Transferee does not accept the board nomination rights. 3 Note to form: bracketed language to be removed if Block Sale Transferee does not accept the board nomination rights. Company pursuant to a proxy statement of the Company), other than as contemplated by the Governance Agreement or the Stockholders Agreement or the transactions contemplated thereby;
(c) seek to call, or to request the calling of, or call a special meeting of the stockholders of the Company, or seek to make, or make, a stockholder proposal (whether pursuant to Rule 14a-8 under the Exchange Act or otherwise) at any meeting of the stockholders of the Company, or make a request for a list of the Company’s stockholders, or[, other than pursuant to the Block Sale Transferee’s nomination rights in accordance with Article 5 of this Agreement,]4 seek election of a representative to the Board of Directors, seek to place a representative on the Board of Directors or seek the removal of any director from the Board of Directors, or otherwise acting alone, or by participating in a group, seek to control or influence the governance or policies of the Company;
(dvi) effect or seek to effect (includingseek, without limitation, by entering into any discussions, negotiations, agreements or understandings whether or not legally enforceable with any third Person), offer or propose (whether publicly or otherwise) to effect, or cause or participate in, alone or in concert with others, representation on the Board, except as specifically permitted in Section 1;
(vii) advise, knowingly encourage, knowingly support or knowingly influence any way assist person or facilitate any other Person entity with respect to effect the voting or seek, offer or propose (whether publicly or otherwise) to effect or participate in any acquisition disposition of any Company Common Shares (or other equity securities of the Company) (Company at any annual or Beneficial Ownership thereof) in excess special meeting of the Ownership Limitationstockholders, except in accordance with Section 2.11; providedor
(viii) make any request or submit any proposal to amend the terms of this Agreement other than through non-public communications with the Company or the Board that would not be reasonably determined to trigger public disclosure obligations for any Party.
(b) Except as expressly provided in Section 1 or Section 2(a), thatStarboard shall be entitled to (i) vote any shares of Common Stock that it beneficially owns as Starboard determines in its sole discretion and (ii) disclose, for the avoidance of doubtpublicly or otherwise, the Block Sale Transferee is permitted how it intends to Transfer vote or act with respect to an unaffiliated third party any Company Common Shares (or other equity securities of the Company) Beneficially Owned , any stockholder proposal or other matter to be voted on by the Block Sale Transfereestockholders of the Company and the reasons therefor, subject to the provisions of Article 8 hereof, if applicable;Section 1(c)(iii).
(e) effect or seek to effect (including, without limitation, by entering into any discussions, negotiations, agreements or understandings whether or not legally enforceable with any third Person), offer or propose (whether publicly or otherwise) to effect, or cause or participate in, or in any way assist or facilitate any other Person to effect or seek, offer or propose (whether publicly or otherwise) to effect or participate in (i) any tender offer or exchange offer, merger, acquisition, share exchange or other business combination involving the Company or any of its Subsidiaries, (ii) any recapitalization, restructuring, liquidation, dissolution or other extraordinary transaction with respect to the Company or any of its Subsidiaries or any material portion of its or their businesses, or (iii) any acquisition of any material assets or businesses of the Company or any of its Subsidiaries;
(f) publicly disclose, or cause or, in a material manner, facilitate the public disclosure (including without limitation through the filing by it of any document or report with the SEC or any other governmental agency or any disclosure to any 4 Note to form: bracketed language to be removed if Block Sale Transferee does not accept the board nomination rights. journalist, member of the media or securities analyst) of any intent, purpose, plan or proposal to obtain any waiver, or consent under, or any amendment of, any of the provisions of Section 2.1, this Section 3.1, or Article 4 (except as described in Section 4.1) or bring any action to (i) contest the validity of Section 2.1, this Section 3.1 or Article 4, or (ii) seek a release from the restrictions contained in Section 2.1, this Section 3.1 or Article 4;
(g) unless required by law, make or issue or cause to be made or issued any public disclosure, announcement or statement (including without limitation the filing of any document or report with the SEC or any other governmental agency or any disclosure to any journalist, member of the media or securities analyst) (i) in support of any solicitation described in paragraph (a) above (other than solicitations by the Company), (ii) in support of any matter described in paragraph (c) above, (iii) concerning any potential matter described Nothing in paragraph (d) above; (iv) concerning any potential matter described in paragraph (e) above; or (v) negatively commenting upon the Company’s corporate strategy, business, corporate activities, board of directors or management (for the avoidance of doubt, making any factual statement about the Company’s corporate strategy, business, corporate activities, board of directors or management shall not be prohibited by this Section 3.1(g)(v)); or
(h) enter into any discussions, negotiations, agreements or understandings with any Person with respect to any of the foregoing or advise, assist or seek to persuade others to take any action with respect to any of the foregoing. Notwithstanding the foregoing, (a) [the restrictions in Sections 3.1(d), 3.1(e), 3.1(f), 3.1(g)(iii), 3.1(g)(iv), 3.1(g)(v) and 3.1(h) (to the extent it relates to any of the foregoing2(a) shall not apply at be deemed to limit the exercise in good faith by any time that Independent Designee (ior a Replacement Director, as applicable) the Company fails to comply in all material respects with its obligations under Article 5 hereof, which failure continues unremedied for a period of 10 business days following receipt by the Company of a written notice from the Block Sale Transferee of such failure or (ii) the Block Sale Transferee has relinquished its nomination rights pursuant to Article 5 and all Block Sale Transferee nominated directors have resigned; or (b)]5 in the event that (x) the Board of Directors determines that the Company should engage in any transaction described in Section 3.1(e)(i) or 3.1(e)(ii), the Block Sale Transferee shall be permitted to participate person’s fiduciary duties solely in such Board of Directors’ approved transaction person’s capacity as a shareholder on the same terms and conditions as any other shareholder director of the Company, (y) the Board of Directors determines that the Company should solicit from one or more Persons or enter into discussions with one or more Persons regarding, or invites any other Person or group to make a proposal (without similarly inviting the Block Sale Transferee to make a similar proposal) with respect to an acquisition of (i) all or substantially all of the equity securities or assets of the Company or any of its Subsidiaries (by merger, tender offer or otherwise) or (ii) any material assets or businesses of the Company or any of its Subsidiaries, the Block Sale Transferee shall have the right to make a non-public competing proposal to the Board of Directors in compliance with any written procedures generally applicable to Persons making proposals provided by the Company 5 Note to form: enumerated restrictions to be removed if the Block Sale Transferee does not accept the board nomination rights. or the Board of Directors or (z) any third party that is not an Affiliate of the Block Sale Transferee makes a bona fide offer or proposal, with respect to a matter described in Section 3.1(d) or 3.1(e) above (a “Third Party Proposal”), the Block Sale Transferee (A) shall have the right to make a non-public competing proposal to the Board of Directors and may publicly announce that it has made a competing proposal to the Board of Directors so long as such public announcement does not constitute an offer or a solicitation to any recipient thereof and (B) may tender, exchange or otherwise sell or transfer its Company Common Shares (or other equity securities of the Company) to such third party in accordance with the Third Party Proposal; provided, however, that in the case of clauses (y) and (z), the Block Sale Transferee shall be prohibited from participating with, joining in a group with or providing financing to any such third party). [For the avoidance of doubt, any discussions involving the directors nominated by the Block Sale Transferee pursuant to Article 5 hereof (i) at a meeting of the Board of Directors or (ii) with management of the Company, other members of the Board of Directors or any of the Company’s advisors or representatives, in the case of clauses (i) and (ii), while acting in such directors’ capacity as members of the Board of Directors, shall not be deemed to violate any of the provisions of this Article 3.]6.
Appears in 2 contracts
Samples: Agreement (Starboard Value LP), Agreement (Box Inc)
Standstill Provisions. During (a) Starboard agrees that, from the date of this Agreement until the earlier of (x) the date that is thirty (30) calendar days prior to the deadline for the submission of stockholder nominations for the 2019 Annual Meeting pursuant to the Company’s Amended & Restated Bylaws, (y) the date that is one hundred (100) days prior to the first anniversary of the 2018 Annual Meeting and (z) following the appointment of the initial Starboard Appointee, such time as no Starboard Appointee (or Starboard Replacement Director) is serving on the Board and Starboard has irrevocably notified the Company in writing that it will not seek to fill such vacancy (the “Standstill Period”), unless expressly authorized in writing to do so by a majority of the members of the Board of Directors, acting through a committee of directors that qualify as “independent directors” as defined by applicable stock exchange listing rules [(which term, for this purpose, will exclude any directors nominated by the Block Sale Transferee)]1, the Block Sale Transferee Starboard shall not, and shall cause each of its controlled Affiliates and controlled Associates not to, in each case directly or indirectly, acting alone or as part of a groupin any manner:
(ai) make, or in any way participate engage in any solicitation of any proxy [proxies or consents or become a “participant” in a “solicitation” (but without regard to the exclusion set forth as such terms are defined in Rule 14a-1(l)(2)(iv) Regulation 14A under the Exchange Act from the definition Act) of “solicitation”)]2 to vote any Company Common Shares (proxies or other equity securities of the Company) with respect to any matter consents (including, without limitation, any contested solicitation for the election of directors with respect consents that seeks to the Company), other than solicitations or acting as a participant in support of all of the Company’s nominees [including, without limitation, the nominees of the Block Sale Transferee pursuant to Article 5]3;
(b) form, join in or in any way participate in a group (for the avoidance of doubt, the Block Sale Transferee shall not be deemed to have formed, joined in or in any way participated in a group with the Company as a result of the Block Sale Transferee’s execution of this Agreement) with respect to the Company Common Shares (or other equity securities of the Company) or deposit any Company Common Shares (or other equity securities of the Company) in a voting trust or similar arrangement or subject any Company Common Shares (or other equity securities of the Company) to any voting agreement or similar arrangement, or grant any proxy with respect to any Company Common Shares (or other equity securities of the Company) (other than to a designated representative of the 1 Note to form: bracketed language to be removed if Block Sale Transferee does not accept the board nomination rights. 2 Note to form: bracketed language to be removed if Block Sale Transferee does not accept the board nomination rights. 3 Note to form: bracketed language to be removed if Block Sale Transferee does not accept the board nomination rights. Company pursuant to a proxy statement of the Company), other than as contemplated by the Governance Agreement or the Stockholders Agreement or the transactions contemplated thereby;
(c) seek to call, or to request the calling of, or call a special meeting of the stockholders of the Companystockholders), or seek in each case, with respect to make, or make, a stockholder proposal (whether pursuant to Rule 14a-8 under the Exchange Act or otherwise) at any meeting of the stockholders of the Company, or make a request for a list of the Company’s stockholders, or[, other than pursuant to the Block Sale Transferee’s nomination rights in accordance with Article 5 of this Agreement,]4 seek election of a representative to the Board of Directors, seek to place a representative on the Board of Directors or seek the removal of any director from the Board of Directors, or otherwise acting alone, or by participating in a group, seek to control or influence the governance or policies securities of the Company;
(dii) effect or seek to effect (includingform, without limitation, by entering into any discussions, negotiations, agreements or understandings whether or not legally enforceable with any third Person), offer or propose (whether publicly or otherwise) to effect, or cause or participate in, join or in any way assist or facilitate any other Person to effect or seek, offer or propose (whether publicly or otherwise) to effect or knowingly participate in any acquisition “group” (within the meaning of any Company Common Shares (or other equity securities Section 13(d)(3) of the CompanyExchange Act) with respect to the shares of Common Stock (other than a “group” comprised exclusively of all or Beneficial Ownership thereof) in excess some of the Ownership Limitationentities or persons listed on Exhibit A, except in accordance with Section 2.1; provided, thatand, for the avoidance of doubt, that does not include any other entities or persons); provided, however, that nothing herein shall limit the Block Sale Transferee is permitted ability of an Affiliate of Starboard to Transfer join the “group” with Starboard following the execution of this Agreement, so long as any such Affiliate agrees to an unaffiliated third party any Company Common Shares (or other equity securities of the Company) Beneficially Owned be bound by the Block Sale Transferee, subject to the provisions terms and conditions of Article 8 hereof, if applicablethis Agreement;
(eiii) effect deposit any shares of Common Stock in any voting trust or subject any shares of Common Stock to any arrangement or agreement with respect to the voting of any shares of Common Stock, other than any such voting trust, arrangement or agreement solely among the members of Starboard and otherwise in accordance with this Agreement;
(iv) seek to effect (including, without limitation, by entering into any discussions, negotiations, agreements or understandings whether or not legally enforceable with any third Person), offer or propose (whether publicly or otherwise) to effectsubmit, or cause knowingly encourage any person or participate inentity to seek or submit, nomination(s) in furtherance of a “contested solicitation” for the appointment, election or in any way assist or facilitate any other Person removal of directors with respect to effect the Company or seek, 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 Board; provided, however, that nothing in this Agreement shall prevent Starboard or its Affiliates or Associates from taking actions in furtherance of identifying director candidates in connection with the 2019 Annual Meeting so long as such actions do not create a public disclosure obligation for Starboard or the Company and are undertaken on a basis reasonably designed to be confidential and in accordance in all material respects with Starboard’s normal practices in the circumstances;
(A) make any proposal for consideration by stockholders at any annual or special meeting of stockholders of the Company or through any referendum of stockholders, (B) make any offer or propose proposal (whether publicly with or otherwisewithout conditions) with respect to effect or participate in (i) any tender offer or exchange merger, scheme of arrangement, takeover offer, merger, acquisition, share exchange recapitalization, restructuring, disposition or other business combination involving Starboard (or its Affiliates) and the Company, (C) affirmatively solicit a third party to make an offer or proposal (with or without conditions) with respect to any merger, scheme of arrangements, takeover offer, acquisition, recapitalization, restructuring, disposition or other business combination involving the Company Company, or publicly encourage, initiate or support any of its Subsidiariesthird party in making such an offer or proposal, (iiD) publicly comment on any third party proposal regarding any merger, scheme of arrangement, takeover offer, acquisition, recapitalization, restructuring, liquidationdisposition, dissolution or other extraordinary transaction business combination with respect to the Company or any of its Subsidiaries or any material portion of its or their businesses, by such third party prior to such proposal becoming public or (iiiE) call or seek to call a special meeting of stockholders;
(vi) seek, alone or in concert with others, representation on the Board, except as specifically permitted in Section 1;
(vii) advise, knowingly encourage, knowingly support or knowingly influence any acquisition person or entity with respect to the voting or disposition of any material assets or businesses securities of the Company at any annual or any special meeting of its Subsidiaries;stockholders, except in accordance with Section 1; or
(fviii) publicly disclose, make any request or cause or, in a material manner, facilitate submit any proposal to amend the terms of this Agreement other than through non-public communications with the Company that would not be reasonably determined to trigger public disclosure obligations for any Party.
(including without limitation through the filing by it of any document or report with the SEC or any other governmental agency or any disclosure to any 4 Note to form: bracketed language to be removed if Block Sale Transferee does not accept the board nomination rights. journalist, member of the media or securities analystb) of any intent, purpose, plan or proposal to obtain any waiver, or consent under, or any amendment of, any of the provisions of Section 2.1, this Section 3.1, or Article 4 (except Except as described expressly provided in Section 4.1) 1 or bring any action Section 2(a), Starboard shall be entitled to (i) contest vote the validity shares of Section 2.1, this Section 3.1 or Article 4, or Common Stock that it beneficially owns as it determines in its sole discretion and (ii) seek a release from the restrictions contained in Section 2.1disclose, this Section 3.1 publicly or Article 4;
(g) unless required by lawotherwise, make how it intends to vote or issue or cause to be made or issued any public disclosure, announcement or statement (including without limitation the filing of any document or report with the SEC or any other governmental agency or any disclosure to any journalist, member of the media or securities analyst) (i) in support of any solicitation described in paragraph (a) above (other than solicitations by the Company), (ii) in support of any matter described in paragraph (c) above, (iii) concerning any potential matter described in paragraph (d) above; (iv) concerning any potential matter described in paragraph (e) above; or (v) negatively commenting upon the Company’s corporate strategy, business, corporate activities, board of directors or management (for the avoidance of doubt, making any factual statement about the Company’s corporate strategy, business, corporate activities, board of directors or management shall not be prohibited by this Section 3.1(g)(v)); or
(h) enter into any discussions, negotiations, agreements or understandings with any Person act with respect to any of the foregoing or advise, assist or seek to persuade others to take any action with respect to any of the foregoing. Notwithstanding the foregoing, (a) [the restrictions in Sections 3.1(d), 3.1(e), 3.1(f), 3.1(g)(iii), 3.1(g)(iv), 3.1(g)(v) and 3.1(h) (to the extent it relates to any of the foregoing) shall not apply at any time that (i) the Company fails to comply in all material respects with its obligations under Article 5 hereof, which failure continues unremedied for a period of 10 business days following receipt by the Company of a written notice from the Block Sale Transferee of such failure or (ii) the Block Sale Transferee has relinquished its nomination rights pursuant to Article 5 and all Block Sale Transferee nominated directors have resigned; or (b)]5 in the event that (x) the Board of Directors determines that the Company should engage in any transaction described in Section 3.1(e)(i) or 3.1(e)(ii), the Block Sale Transferee shall be permitted to participate in such Board of Directors’ approved transaction as a shareholder on the same terms and conditions as any other shareholder securities of the Company, (y) any stockholder proposal or other matter to be voted on by the Board of Directors determines that the Company should solicit from one or more Persons or enter into discussions with one or more Persons regarding, or invites any other Person or group to make a proposal (without similarly inviting the Block Sale Transferee to make a similar proposal) with respect to an acquisition of (i) all or substantially all of the equity securities or assets stockholders of the Company or any and the reasons therefor (in each case, subject to Section 1(e)(iii)).
(c) Nothing in this Agreement shall be deemed to limit the exercise in good faith by an Appointed Director of its Subsidiaries (by merger, tender offer or otherwise) or (ii) any material assets or businesses of the Company or any of its Subsidiaries, the Block Sale Transferee shall have the right to make such person’s duties solely in such person’s capacity as a non-public competing proposal to the Board of Directors in compliance with any written procedures generally applicable to Persons making proposals provided by the Company 5 Note to form: enumerated restrictions to be removed if the Block Sale Transferee does not accept the board nomination rights. or the Board of Directors or (z) any third party that is not an Affiliate of the Block Sale Transferee makes a bona fide offer or proposal, with respect to a matter described in Section 3.1(d) or 3.1(e) above (a “Third Party Proposal”), the Block Sale Transferee (A) shall have the right to make a non-public competing proposal to the Board of Directors and may publicly announce that it has made a competing proposal to the Board of Directors so long as such public announcement does not constitute an offer or a solicitation to any recipient thereof and (B) may tender, exchange or otherwise sell or transfer its Company Common Shares (or other equity securities director of the Company) to such third party in accordance with the Third Party Proposal; provided, however, that in the case of clauses (y) and (z), the Block Sale Transferee shall be prohibited from participating with, joining in a group with or providing financing to any such third party). [For the avoidance of doubt, any discussions involving the directors nominated by the Block Sale Transferee pursuant to Article 5 hereof (i) at a meeting of the Board of Directors or (ii) with management of the Company, other members of the Board of Directors or any of the Company’s advisors or representatives, in the case of clauses (i) and (ii), while acting in such directors’ capacity as members of the Board of Directors, shall not be deemed to violate any of the provisions of this Article 3.]6.
Appears in 2 contracts
Samples: Shareholder Agreement (Starboard Value LP), Agreement (Forest City Realty Trust, Inc.)
Standstill Provisions. During (a) Each member of Mast Capital agrees that, from the date of this Agreement until the earlier of (i) the conclusion of the Company’s 2013 Annual Meeting or (ii) June 30, 2013 (the “Standstill Period”), unless expressly authorized neither it nor any of its Affiliates or Associates (as such terms are defined in writing to do so by a majority Regulation 14A under the Securities Exchange Act of 1934, as amended or the members of rules or regulations thereunder (the Board of Directors, acting through a committee of directors that qualify as “independent directors” as defined by applicable stock exchange listing rules [(which term, for this purpose, will exclude any directors nominated by the Block Sale Transferee)]1, the Block Sale Transferee shall notExchange Act”)) under its control or direction will, and shall it will cause each of its Affiliates and Associates under its control not to, directly or indirectly, acting alone or as part of a groupin any manner:
(ai) makepurchase or cause to be purchased or otherwise acquire or agree to acquire beneficial ownership (as determined under Rule 13d-3 promulgated under the Exchange Act) of any Common Stock or other securities issued by Company, if in any such case, immediately after the taking of such action, Mast Capital would, in the aggregate, collectively beneficially own more than 19.99% of the then outstanding shares of Common Stock;
(ii) engage in any solicitation of proxies or consents or become a “participant” in a “solicitation” as such terms are defined in Regulation 14A under the Exchange Act of proxies or consents (including, without limitation, any solicitation of consents to call a special meeting of stockholders), in each case, with respect to securities of the Company;
(iii) seek to advise, encourage, support or influence any person with respect to the voting or disposition of any securities of the Company at annual meeting of stockholders, except in accordance with Section 1;
(iv) form, join or in any way participate in any solicitation “group” (within the meaning of any proxy [(but without regard to the exclusion set forth in Rule 14a-1(l)(2)(ivSection 13(d)(3) under of the Exchange Act from the definition of “solicitation”)]2 to vote any Company Common Shares (or other equity securities of the CompanyAct) with respect to the Common Stock (other than a “group” that includes all or some lesser number of the persons identified as part of Mast Capital, but does not include any matter other members who are not currently identified as part of Mast Capital as of the date hereof);
(includingv) deposit any Common Stock in any voting trust or subject any Common Stock to any arrangement or agreement with respect to the voting of any Common Stock, without limitationother than any such voting trust, arrangement or agreement solely among the members of Mast Capital;
(vi) seek or encourage any person to submit nominations in furtherance of a “contested solicitation solicitation” for the election or removal of directors with respect to the Company), other than solicitations or acting as a participant in support ;
(1) make any proposal for consideration by stockholders at any annual meeting of all stockholders of the Company or (2) make any offer or proposal (with or without conditions) with respect to a merger, acquisition, disposition or other business combination involving Mast Capital and the Company’s nominees [including; or
(viii) seek, without limitationalone or in concert with others, representation on the nominees of the Block Sale Transferee pursuant to Article 5]3;Board, except as specifically contemplated in Section 1.
(b) form, join in or in any way participate in a group (for the avoidance of doubt, the Block Sale Transferee shall not be deemed to have formed, joined in or in any way participated in a group with the Company as a result of the Block Sale Transferee’s execution of this Agreement) with respect Notwithstanding anything contained herein to the Company Common Shares contrary, except as expressly provided herein, each member of Mast Capital shall be entitled to:
(i) vote their shares on any proposal duly brought before the 2012 Annual Meeting or other equity securities of the Company) or deposit any Company Common Shares (or other equity securities of the Company) in a voting trust or similar arrangement or subject any Company Common Shares (or other equity securities of the Company) to any voting agreement or similar arrangement, or grant any proxy with respect to any Company Common Shares (or other equity securities of the Company) 2013 Annual Meeting (other than to a designated representative the election of the 1 Note to form: bracketed language to be removed if Block Sale Transferee does not accept the board nomination rights. 2 Note to form: bracketed language to be removed if Block Sale Transferee does not accept the board nomination rights. 3 Note to form: bracketed language to be removed if Block Sale Transferee does not accept the board nomination rights. Company pursuant to a proxy statement of the Companydirectors), other than as contemplated by the Governance Agreement or the Stockholders Agreement or the transactions contemplated thereby;
(c) seek to call, or to request the calling of, or call a any special meeting of the stockholders of the Company, or seek otherwise vote as each member of Mast Capital determines in its sole discretion;
(ii) propose a slate of nominees for election as directors and/or one or more proposal(s) for consideration or approval by stockholders at the 2014 Annual Meeting;
(iii) disclose, publicly or otherwise, how it intends to makevote or act with respect to any securities of the Company, or make, a any stockholder proposal (whether pursuant or other matter to Rule 14a-8 under the Exchange Act or otherwise) at any meeting of be voted on by the stockholders of the Company, or make a request for a list of the Company’s stockholders, or[, Company (other than pursuant to the Block Sale Transferee’s nomination rights in accordance with Article 5 of this Agreement,]4 seek election of a representative to directors) and the Board of Directors, seek to place a representative on the Board of Directors or seek the removal of any director from the Board of Directors, or otherwise acting alone, or by participating in a group, seek to control or influence the governance or policies of the Company;reasons therefor; and
(div) effect or seek announce their opposition to effect (including, without limitation, by entering into any discussions, negotiations, agreements or understandings whether or not legally enforceable with any third Person), offer or propose (whether publicly or otherwise) Board approved proposals related to effect, or cause or participate in, or in any way assist or facilitate any other Person to effect or seek, offer or propose (whether publicly or otherwise) to effect or participate in any acquisition of any Company Common Shares (or other equity securities of the Company) (or Beneficial Ownership thereof) in excess of the Ownership Limitation, except in accordance with Section 2.1; provided, that, for the avoidance of doubt, the Block Sale Transferee is permitted to Transfer to an unaffiliated third party any Company Common Shares (or other equity securities of the Company) Beneficially Owned by the Block Sale Transferee, subject to the provisions of Article 8 hereof, if applicable;
(e) effect or seek to effect (including, without limitation, by entering into any discussions, negotiations, agreements or understandings whether or not legally enforceable with any third Person), offer or propose (whether publicly or otherwise) to effect, or cause or participate in, or in any way assist or facilitate any other Person to effect or seek, offer or propose (whether publicly or otherwise) to effect or participate in (i) any tender offer or exchange offer, a merger, acquisition, share exchange disposition of all or substantially all of the assets of the Company or other business combination involving the Company or any of its Subsidiaries, (ii) any recapitalization, restructuring, liquidation, dissolution or other extraordinary transaction with respect to the Company or any of its Subsidiaries or any material portion of its or their businesses, or (iii) any acquisition of any material assets or businesses of the Company or any of its Subsidiaries;
(f) publicly disclose, or cause or, in a material manner, facilitate the public disclosure (including without limitation through the filing by it of any document or report with the SEC or any other governmental agency or any disclosure to any 4 Note to form: bracketed language to be removed if Block Sale Transferee does not accept the board nomination rights. journalist, member of the media or securities analyst) of any intent, purpose, plan or proposal to obtain any waiver, or consent under, or any amendment of, any of the provisions of Section 2.1, this Section 3.1, or Article 4 (except as described in Section 4.1) or bring any action to (i) contest the validity of Section 2.1, this Section 3.1 or Article 4, or (ii) seek a release from the restrictions contained in Section 2.1, this Section 3.1 or Article 4;
(g) unless required by law, make or issue or cause to be made or issued any public disclosure, announcement or statement (including without limitation the filing of any document or report with the SEC or any other governmental agency or any disclosure to any journalist, member of the media or securities analyst) (i) in support of any solicitation described in paragraph (a) above (other than solicitations by the Company), (ii) in support of any matter described in paragraph (c) above, (iii) concerning any potential matter described in paragraph (d) above; (iv) concerning any potential matter described in paragraph (e) above; or (v) negatively commenting upon the Company’s corporate strategy, business, corporate activities, board of directors or management (for the avoidance of doubt, making any factual statement about the Company’s corporate strategy, business, corporate activities, board of directors or management shall not be prohibited by this Section 3.1(g)(v)); or
(h) enter into any discussions, negotiations, agreements or understandings with any Person with respect to any of the foregoing or advise, assist or seek to persuade others to take any action with respect to any of the foregoing. Notwithstanding the foregoing, (a) [the restrictions in Sections 3.1(d), 3.1(e), 3.1(f), 3.1(g)(iii), 3.1(g)(iv), 3.1(g)(v) and 3.1(h) (to the extent it relates to any of the foregoing) shall not apply at any time that (i) the Company fails to comply in all material respects with its obligations under Article 5 hereof, which failure continues unremedied for a period of 10 business days following receipt by the Company of a written notice from the Block Sale Transferee of such failure or (ii) the Block Sale Transferee has relinquished its nomination rights pursuant to Article 5 and all Block Sale Transferee nominated directors have resigned; or (b)]5 in the event that (x) the Board of Directors determines that the Company should engage in any transaction described in Section 3.1(e)(i) or 3.1(e)(ii), the Block Sale Transferee shall be permitted to participate in such Board of Directors’ approved transaction as a shareholder on the same terms and conditions as any other shareholder of the Company, (y) the Board of Directors determines that the Company should solicit from one or more Persons or enter into discussions with one or more Persons regarding, or invites any other Person or group to make a proposal (without similarly inviting the Block Sale Transferee to make a similar proposal) with respect to an acquisition of (i) all or substantially all of the equity securities or assets of the Company or any of its Subsidiaries (by merger, tender offer or otherwise) or (ii) any material assets or businesses of the Company or any of its Subsidiaries, the Block Sale Transferee shall have the right to make a non-public competing proposal to the Board of Directors in compliance with any written procedures generally applicable to Persons making proposals provided by the Company 5 Note to form: enumerated restrictions to be removed if the Block Sale Transferee does not accept the board nomination rights. or the Board of Directors or (z) any third party that is not an Affiliate of the Block Sale Transferee makes a bona fide offer or proposal, with respect to a matter described in Section 3.1(d) or 3.1(e) above (a “Third Party Proposal”), the Block Sale Transferee (A) shall have the right to make a non-public competing proposal to the Board of Directors and may publicly announce that it has made a competing proposal to the Board of Directors so long as such public announcement does not constitute an offer or a solicitation to any recipient thereof and (B) may tender, exchange or otherwise sell or transfer its Company Common Shares (or other equity securities of the Company) to such third party in accordance with the Third Party Proposal; provided, however, that in the case of clauses (y) and (z), the Block Sale Transferee shall be prohibited from participating with, joining in a group with or providing financing to any such third party). [For the avoidance of doubt, any discussions involving the directors nominated by the Block Sale Transferee pursuant to Article 5 hereof (i) at a meeting of the Board of Directors or (ii) with management of the Company, other members of the Board of Directors or any of the Company’s advisors or representatives, in the case of clauses (i) and (ii), while acting in such directors’ capacity as members of the Board of Directors, shall not be deemed to violate any of the provisions of this Article 3.]6.
Appears in 2 contracts
Samples: Shareholder Agreement (Lodgenet Interactive Corp), Shareholder Agreement (Mast Capital Management LLC)
Standstill Provisions. During the period commencing on the Signing Date and ending on the date that is [***] days after the Signing Date (the “Standstill Period”), unless expressly authorized in writing to do so by a majority neither the Purchaser nor any of the members of the Board of DirectorsPurchaser’s Affiliates that are under its control will, acting through a committee of directors that qualify as “independent directors” as defined by applicable stock exchange listing rules [(which term, for this purpose, will exclude in any directors nominated by the Block Sale Transferee)]1, the Block Sale Transferee shall not, and shall cause its Affiliates not tomanner, directly or indirectly, acting alone or as part of a group:
(a) 7.1 make, or in any way participate in any solicitation of any proxy [(but without regard to the exclusion set forth in Rule 14a-1(l)(2)(iv) under the Exchange Act from the definition of “solicitation”)]2 to vote any Company Common Shares (or other equity securities of the Company) with respect to any matter (including, without limitation, any contested solicitation for the election of directors with respect to the Company), other than solicitations or acting as a participant in support of all of the Company’s nominees [including, without limitation, the nominees of the Block Sale Transferee pursuant to Article 5]3;
(b) form, join in or in any way participate in a group (for the avoidance of doubt, the Block Sale Transferee shall not be deemed to have formed, joined in or in any way participated in a group with the Company as a result of the Block Sale Transferee’s execution of this Agreement) with respect to the Company Common Shares (or other equity securities of the Company) or deposit any Company Common Shares (or other equity securities of the Company) in a voting trust or similar arrangement or subject any Company Common Shares (or other equity securities of the Company) to any voting agreement or similar arrangement, or grant any proxy with respect to any Company Common Shares (or other equity securities of the Company) (other than to a designated representative of the 1 Note to form: bracketed language to be removed if Block Sale Transferee does not accept the board nomination rights. 2 Note to form: bracketed language to be removed if Block Sale Transferee does not accept the board nomination rights. 3 Note to form: bracketed language to be removed if Block Sale Transferee does not accept the board nomination rights. Company pursuant to a proxy statement of the Company), other than as contemplated by the Governance Agreement or the Stockholders Agreement or the transactions contemplated thereby;
(c) seek to call, or to request the calling of, or call a special meeting of the stockholders of the Company, or seek to make, or make, a stockholder proposal (whether pursuant to Rule 14a-8 under the Exchange Act or otherwise) at any meeting of the stockholders of the Company, or make a request for a list of the Company’s stockholders, or[, other than pursuant to the Block Sale Transferee’s nomination rights in accordance with Article 5 of this Agreement,]4 seek election of a representative to the Board of Directors, seek to place a representative on the Board of Directors or seek the removal of any director from the Board of Directors, or otherwise acting alone, or by participating in a group, seek to control or influence the governance or policies of the Company;
(d) effect or seek to effect (including, without limitation, by entering into any discussions, negotiations, agreements or understandings whether or not legally enforceable with any third Person), offer or propose (whether publicly or otherwise) to effect, or initiate, cause or participate in, or in any way assist or facilitate any other Person to effect or seek, offer or propose (whether publicly or otherwise) to effect or participate in any acquisition of any Company Common Shares (or other equity securities of the Company) (or Beneficial Ownership thereof) in excess of the Ownership Limitation, except in accordance with Section 2.1; provided, that, for the avoidance of doubt, the Block Sale Transferee is permitted to Transfer to an unaffiliated third party any Company Common Shares (or other equity securities of the Company) Beneficially Owned by the Block Sale Transferee, subject to the provisions of Article 8 hereof, if applicable;
(e) effect or seek to effect (including, without limitation, by entering into any discussions, negotiations, agreements or understandings whether or not legally enforceable with any third Person), offer or propose (whether publicly or otherwise) to effect, or cause or participate in, or in any way assist or facilitate any other Person to effect or seek, offer or propose (whether publicly or otherwise) to effect or participate in (i) any acquisition of beneficial ownership of any securities of the Company, (ii) any acquisition of all or substantially all of the assets of the Company, (iii) any tender offer or offer, exchange offer, merger, acquisitionbusiness combination, share exchange or other business combination involving the Company or any of its Subsidiaries, (ii) any recapitalization, restructuring, liquidation, dissolution or other extraordinary transaction involving the Company or involving any securities of the Company, 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 the Company;
7.2 form, join or participate in a “group” (as defined in the Exchange Act, and the rules promulgated thereunder) with respect to the Company or any of its Subsidiaries or any material portion of its or their businesses, or (iii) any acquisition beneficial ownership of any material assets or businesses securities of the Company or any of its SubsidiariesCompany;
(f) publicly disclose7.3 act, alone or cause orin concert with others, in a material manner, facilitate to seek to control or influence the public disclosure (including without limitation through the filing by it of any document or report with the SEC or any other governmental agency or any disclosure to any 4 Note to form: bracketed language to be removed if Block Sale Transferee does not accept the board nomination rights. journalist, member of the media or securities analyst) of any intent, purpose, plan or proposal to obtain any waiver, or consent under, or any amendment of, any of the provisions of Section 2.1, this Section 3.1, or Article 4 (except as described in Section 4.1) or bring any action to (i) contest the validity of Section 2.1, this Section 3.1 or Article 4, or (ii) seek a release from the restrictions contained in Section 2.1, this Section 3.1 or Article 4;
(g) unless required by law, make or issue or cause to be made or issued any public disclosure, announcement or statement (including without limitation the filing of any document or report with the SEC or any other governmental agency or any disclosure to any journalist, member of the media or securities analyst) (i) in support of any solicitation described in paragraph (a) above (other than solicitations by the Company), (ii) in support of any matter described in paragraph (c) above, (iii) concerning any potential matter described in paragraph (d) above; (iv) concerning any potential matter described in paragraph (e) above; or (v) negatively commenting upon the Company’s corporate strategy, business, corporate activitiesmanagement, board of directors or management (for the avoidance policies of doubt, making any factual statement about the Company’s corporate strategy;
7.4 take any action that would be reasonably expected to require the Company to make a public announcement regarding any of the types of matters set forth in clause “(a)” of this sentence;
7.5 agree or offer to take, businessor propose (publicly or otherwise) the taking of, corporate activities, board any action referred to in Sections 7.1 through 7.4;
7.6 assist any other Person to take any action of directors or management shall not be prohibited by this Section 3.1(g)(v)); orthe type referred to in Sections 7.1 through 7.5;
(h) 7.7 enter into any discussions, negotiations, agreements arrangement or understandings agreement with any other Person with respect to any of the foregoing or advise, assist or seek to persuade others to take any action with respect relating to any of the foregoing. Notwithstanding the foregoing, (a) [the restrictions in Sections 3.1(d), 3.1(e), 3.1(f), 3.1(g)(iii), 3.1(g)(iv), 3.1(g)(v) and 3.1(h) (to the extent it relates to any of the foregoing) shall not apply at any time that (i) the Company fails to comply in all material respects with its obligations under Article 5 hereof, which failure continues unremedied for a period of 10 business days following receipt by the Company of a written notice from the Block Sale Transferee of such failure ; or
7.8 request or (ii) the Block Sale Transferee has relinquished its nomination rights pursuant to Article 5 and all Block Sale Transferee nominated directors have resigned; or (b)]5 in the event that (x) the Board of Directors determines propose that the Company should engage in any transaction described in Section 3.1(e)(i) or 3.1(e)(ii), the Block Sale Transferee shall be permitted to participate in such Board of Directors’ approved transaction as a shareholder on the same terms and conditions as any other shareholder of the Company, (y) the Board of Directors determines that the Company should solicit from one or more Persons or enter into discussions with one or more Persons regarding, or invites any other Person or group to make a proposal (without similarly inviting the Block Sale Transferee to make a similar proposal) with respect to an acquisition of (i) all or substantially all of the equity securities or assets of the Company or any of its Subsidiaries (by merger, tender offer or otherwise) or (ii) any material assets or businesses of the Company or any of its Subsidiaries, the Block Sale Transferee shall have the right to make a non-public competing proposal to the Board of Directors in compliance with any written procedures generally applicable to Persons making proposals provided by the Company 5 Note to form: enumerated restrictions to be removed if the Block Sale Transferee does not accept the board nomination rights. or the Board of Directors or (z) any third party that is not an Affiliate of the Block Sale Transferee makes a bona fide offer or proposal, with respect to a matter described in Section 3.1(d) or 3.1(e) above (a “Third Party Proposal”), the Block Sale Transferee (A) shall have the right to make a non-public competing proposal to the Board of Directors and may publicly announce that it has made a competing proposal to the Board of Directors so long as such public announcement does not constitute an offer or a solicitation to any recipient thereof and (B) may tender, exchange or otherwise sell or transfer its Company Common Shares (or other equity securities of the Company) to such third party in accordance with the Third Party Proposal; provided, however, that in the case of clauses (y) and (z), the Block Sale Transferee shall be prohibited from participating with, joining in a group with or providing financing to any such third party). [For the avoidance of doubt, any discussions involving the directors nominated by the Block Sale Transferee pursuant to Article 5 hereof (i) at a meeting of the Board of Directors or (ii) with management of the Company, other members of the Board of Directors or any of the Company’s advisors Representatives amend, waive or representatives, consider the amendment or waiver of any provision set forth in this Section 7. Notwithstanding anything to the contrary in the case foregoing sentence, each of clauses the restrictions contained in this Section 7 (icollectively, the “Standstill”) and shall lapse at such time as: (ii)x) the Company enters into a definitive agreement with any person not affiliated with Purchaser with respect to a merger, while acting sale of assets or securities or other business combination as a result of which such other person would succeed to a majority of the voting securities, assets or business of the Company, or (y) a person not affiliated with Purchaser has commenced an offer (or publicly announced an intention to offer) to acquire a majority of the Company’s outstanding voting securities or undertaken (or publicly announced an intention to undertake) a proxy contest with respect to the election of directors of the Company or that would if successful result in such directors’ capacity as members person owning a majority of the Board outstanding voting securities of Directorsthe Company, shall not be deemed or (z) the Company publicly discloses that it has waived any standstill or similar provision in any other agreement between the Company and any third party, including any provision analogous or substantially similar to violate the Standstill. Neither the termination of the Standstill nor the expiration of the Standstill Period will terminate or otherwise affect any of the other provisions of this Article 3.]6Agreement.
Appears in 2 contracts
Samples: Collaboration, License and Option Agreement (Cue Biopharma, Inc.), Collaboration, License and Option Agreement (Cue Biopharma, Inc.)
Standstill Provisions. During (a) Starboard agrees that, from the date of this Agreement until the earlier of (x) the date that is fifteen (15) business days prior to the deadline for the submission of stockholder nominations for the 2020 annual meeting of the Company’s stockholders (the “2020 Annual Meeting”) pursuant to the Company’s Amended and Restated By-laws or (y) the date that is one hundred (100) days prior to the first anniversary of the 2019 Annual Meeting (the “Standstill Period”), unless expressly authorized in writing to do so by a majority of the members of the Board of Directors, acting through a committee of directors that qualify as “independent directors” as defined by applicable stock exchange listing rules [(which term, for this purpose, will exclude any directors nominated by the Block Sale Transferee)]1, the Block Sale Transferee Starboard shall not, and shall cause its Affiliates each Covered Person not to, in each case directly or indirectly, acting alone or as part of a groupin any manner:
(ai) makeengage in any solicitation of proxies or consents or become a “participant” in a “solicitation” (as such terms are defined in Regulation 14A under the Exchange Act) of proxies or consents, in each case, with respect to any securities of the Company;
(ii) form, join or in any way participate in any solicitation “group” (within the meaning of any proxy [(but without regard to the exclusion set forth in Rule 14a-1(l)(2)(ivSection 13(d)(3) under of the Exchange Act from the definition of “solicitation”)]2 to vote any Company Common Shares (or other equity securities of the CompanyAct) with respect to any matter securities of the Company (includingother than a “group” that includes all or some of the members of Starboard, without limitationbut does not include any other entities or persons that are not members of Starboard as of the date hereof); provided, however, that nothing herein shall limit the ability of an Affiliate of Starboard to join the “group” following the execution of this Agreement, so long as any such Affiliate agrees to be bound in writing by the terms and conditions of this Agreement;
(iii) deposit any Common Shares in any voting trust or subject any Common Shares to any arrangement or agreement with respect to the voting of any Common Shares, other than any such voting trust, arrangement or agreement solely among the members of Starboard and otherwise in accordance with this Agreement;
(iv) seek or submit, or encourage any person or entity to seek or submit, nomination(s) in furtherance of a “contested solicitation solicitation” for the appointment, election or removal of directors with respect to the Company)Company or seek, encourage or take any other than solicitations action with respect to the appointment, election or acting removal of any directors; provided, however, that nothing in this Agreement shall prevent Starboard or its Affiliates or Associates from taking actions in furtherance of identifying director candidates in connection with the 2020 Annual Meeting so long as such actions do not create a participant in support of all of public disclosure obligation for Starboard or the Company, are not publicly disclosed by Starboard or its representatives, Affiliates or Associates and are undertaken on a basis reasonably designed to be confidential and in accordance in all material respects with Starboard’s nominees [including, without limitation, normal practices in the nominees of the Block Sale Transferee pursuant to Article 5]3circumstances;
(bA) form, join in make any proposal for consideration by stockholders at any annual or in any way participate in a group (for the avoidance special meeting of doubt, the Block Sale Transferee shall not be deemed to have formed, joined in or in any way participated in a group with stockholders of the Company as or through any referendum of stockholders, (B) make any offer or proposal (with or without conditions) with respect to any merger, takeover offer, acquisition, recapitalization, restructuring, disposition or other business combination involving the Company, (C) solicit a result of third party to make an offer or proposal (with or without conditions) with respect to any merger, takeover offer, acquisition, recapitalization, restructuring, disposition or other business combination involving the Block Sale Transferee’s execution of this AgreementCompany, or publicly encourage, initiate or support any third party in making such an offer or proposal, (D) publicly comment on any third party proposal regarding any merger, takeover offer, acquisition, recapitalization, restructuring, disposition, or other business combination with respect to the Company Common Shares by such third party (or other equity securities of provided that this clause (D) shall not prevent such public comment after such proposal has become generally known to the Company) or deposit any Company Common Shares (or other equity securities of the Company) in a voting trust or similar arrangement or subject any Company Common Shares (or other equity securities of the Company) to any voting agreement or similar arrangement, or grant any proxy with respect to any Company Common Shares (or other equity securities of the Company) (other than to a designated representative of the 1 Note to form: bracketed language to be removed if Block Sale Transferee does not accept the board nomination rights. 2 Note to form: bracketed language to be removed if Block Sale Transferee does not accept the board nomination rights. 3 Note to form: bracketed language to be removed if Block Sale Transferee does not accept the board nomination rights. Company pursuant to a proxy statement of the Company), public other than as contemplated a result of a disclosure by the Governance Agreement Starboard), or the Stockholders Agreement (E) call or the transactions contemplated thereby;
(c) seek to call, or to request the calling of, or call a special meeting of the stockholders of the Company, or seek to make, or make, a stockholder proposal (whether pursuant to Rule 14a-8 under the Exchange Act or otherwise) at any meeting of the stockholders of the Company, or make a request for a list of the Company’s stockholders, or[, other than pursuant to the Block Sale Transferee’s nomination rights in accordance with Article 5 of this Agreement,]4 seek election of a representative to the Board of Directors, seek to place a representative on the Board of Directors or seek the removal of any director from the Board of Directors, or otherwise acting alone, or by participating in a group, seek to control or influence the governance or policies of the Company;
(dvi) effect or seek to effect (includingseek, without limitation, by entering into any discussions, negotiations, agreements or understandings whether or not legally enforceable with any third Person), offer or propose (whether publicly or otherwise) to effect, or cause or participate in, alone or in concert with others, representation on the Board, except as specifically permitted in Section 1;
(vii) advise, encourage, support or influence any way assist person or facilitate any other Person entity with respect to effect the voting or seek, offer or propose (whether publicly or otherwise) to effect or participate in any acquisition disposition of any Company Common Shares (or other equity securities of the Company) (Company at any annual or Beneficial Ownership thereof) in excess special meeting of the Ownership Limitationstockholders, except in accordance with Section 2.11; provided, that, for the avoidance of doubt, the Block Sale Transferee is permitted to Transfer to an unaffiliated third party any Company Common Shares (or other equity securities of the Company) Beneficially Owned by the Block Sale Transferee, subject to the provisions of Article 8 hereof, if applicable;or
(eviii) effect make any request or seek submit any proposal to effect amend the terms of this Agreement other than through non-public communications with the Company that would not be reasonably determined to trigger public disclosure obligations for any Party.
(including, without limitation, by entering into any discussions, negotiations, agreements b) Except as expressly provided in Section 1 or understandings whether or not legally enforceable with any third PersonSection 2(a), offer or propose (whether publicly or otherwise) to effect, or cause or participate in, or in any way assist or facilitate any other Person to effect or seek, offer or propose (whether publicly or otherwise) to effect or participate in (i) any tender offer or exchange offer, merger, acquisition, share exchange or other business combination involving the Company or any of its Subsidiaries, (ii) any recapitalization, restructuring, liquidation, dissolution or other extraordinary transaction with respect to the Company or any of its Subsidiaries or any material portion of its or their businesses, or (iii) any acquisition of any material assets or businesses of the Company or any of its Subsidiaries;
(f) publicly disclose, or cause or, in a material manner, facilitate the public disclosure (including without limitation through the filing by it of any document or report with the SEC or any other governmental agency or any disclosure to any 4 Note to form: bracketed language to Starboard shall be removed if Block Sale Transferee does not accept the board nomination rights. journalist, member of the media or securities analyst) of any intent, purpose, plan or proposal to obtain any waiver, or consent under, or any amendment of, any of the provisions of Section 2.1, this Section 3.1, or Article 4 (except as described in Section 4.1) or bring any action entitled to (i) contest vote the validity of Section 2.1, this Section 3.1 or Article 4, or Common Shares that it beneficially owns as it determines in its sole discretion and (ii) seek a release from the restrictions contained in Section 2.1disclose, this Section 3.1 publicly or Article 4;
(g) unless required by lawotherwise, make how it intends to vote or issue or cause to be made or issued any public disclosure, announcement or statement (including without limitation the filing of any document or report with the SEC or any other governmental agency or any disclosure to any journalist, member of the media or securities analyst) (i) in support of any solicitation described in paragraph (a) above (other than solicitations by the Company), (ii) in support of any matter described in paragraph (c) above, (iii) concerning any potential matter described in paragraph (d) above; (iv) concerning any potential matter described in paragraph (e) above; or (v) negatively commenting upon the Company’s corporate strategy, business, corporate activities, board of directors or management (for the avoidance of doubt, making any factual statement about the Company’s corporate strategy, business, corporate activities, board of directors or management shall not be prohibited by this Section 3.1(g)(v)); or
(h) enter into any discussions, negotiations, agreements or understandings with any Person act with respect to any of the foregoing or advise, assist or seek to persuade others to take any action with respect to any of the foregoing. Notwithstanding the foregoing, (a) [the restrictions in Sections 3.1(d), 3.1(e), 3.1(f), 3.1(g)(iii), 3.1(g)(iv), 3.1(g)(v) and 3.1(h) (to the extent it relates to any of the foregoing) shall not apply at any time that (i) the Company fails to comply in all material respects with its obligations under Article 5 hereof, which failure continues unremedied for a period of 10 business days following receipt by the Company of a written notice from the Block Sale Transferee of such failure or (ii) the Block Sale Transferee has relinquished its nomination rights pursuant to Article 5 and all Block Sale Transferee nominated directors have resigned; or (b)]5 in the event that (x) the Board of Directors determines that the Company should engage in any transaction described in Section 3.1(e)(i) or 3.1(e)(ii), the Block Sale Transferee shall be permitted to participate in such Board of Directors’ approved transaction as a shareholder on the same terms and conditions as any other shareholder of the Company, (y) the Board of Directors determines that the Company should solicit from one or more Persons or enter into discussions with one or more Persons regarding, or invites any other Person or group to make a proposal (without similarly inviting the Block Sale Transferee to make a similar proposal) with respect to an acquisition of (i) all or substantially all of the equity securities or assets of the Company on any shareholder proposal or any of its Subsidiaries (other matter to be voted on by merger, tender offer or otherwise) or (ii) any material assets or businesses the shareholders of the Company or any of its Subsidiaries, and the Block Sale Transferee shall have the right to make a non-public competing proposal to the Board of Directors in compliance with any written procedures generally applicable to Persons making proposals provided by the Company 5 Note to form: enumerated restrictions to be removed if the Block Sale Transferee does not accept the board nomination rights. or the Board of Directors or reasons therefor.
(zc) any third party that is not an Affiliate of the Block Sale Transferee makes a bona fide offer or proposal, with respect to a matter described Nothing in Section 3.1(d) or 3.1(e) above (a “Third Party Proposal”), the Block Sale Transferee (A2(a) shall have the right to make a non-public competing proposal to the Board of Directors and may publicly announce that it has made a competing proposal to the Board of Directors so long as such public announcement does not constitute an offer or a solicitation to any recipient thereof and (B) may tender, exchange or otherwise sell or transfer its Company Common Shares (or other equity securities of the Company) to such third party in accordance with the Third Party Proposal; provided, however, that in the case of clauses (y) and (z), the Block Sale Transferee shall be prohibited from participating with, joining in a group with or providing financing to any such third party). [For the avoidance of doubt, any discussions involving the directors nominated by the Block Sale Transferee pursuant to Article 5 hereof (i) at a meeting of the Board of Directors or (ii) with management of the Company, other members of the Board of Directors or any of the Company’s advisors or representatives, in the case of clauses (i) and (ii), while acting in such directors’ capacity as members of the Board of Directors, shall not be deemed to violate any limit the exercise in good faith by the Starboard Designee (or the Starboard Replacement Director, as applicable) of such person’s fiduciary duties solely in such person’s capacity as a director of the provisions of Company and in a manner consistent with such person’s and Starboard’s obligations under this Article 3.]6Agreement.
Appears in 2 contracts
Samples: Shareholder Agreement (Starboard Value LP), Shareholder Agreement (GCP Applied Technologies Inc.)
Standstill Provisions. During (a) Each Shareholder hereby agrees that, from the date of this Agreement through its termination, in accordance with its terms (the “Standstill Period”), unless expressly authorized neither it nor any of its controlled Affiliates or Associates (as used in writing to do so by a majority of this Agreement, the members of terms “Affiliate” and “Associate” shall have the Board of Directors, acting through a committee of directors that qualify as “independent directors” as defined by applicable stock exchange listing rules [(which term, for this purpose, will exclude any directors nominated respective meanings set forth in Rule 12b-2 promulgated by the Block Sale Transferee)]1Securities and Exchange Commission (the “SEC”) under the Securities Exchange Act of 1934, as amended, or the Block Sale Transferee shall notrules or regulations promulgated thereunder (the “Exchange Act”), and shall include all persons or entities that at any time during the term of this Agreement become Affiliates or Associates of any person or entity referred to in this Agreement) will, and it will cause each of its controlled Affiliates and Associates not to, directly or indirectly, acting alone or as part of a groupin any manner:
(ai) makeengage in any solicitation of proxies or consents or become a “participant” in a “solicitation” (as such terms are defined in Regulation 14A under the Exchange Act) of proxies or consents (including, without limitation, any solicitation of consents that seeks to call an extraordinary general meeting of shareholders), in each case, with respect to securities of Check-Cap;
(ii) form, join or in any way participate in any solicitation “group” (within the meaning of Section 13(d)(3) of the Exchange Act) or agreement of any proxy [kind with respect to any securities of Check-Cap (but without regard other than the “group” or agreement that includes all of the entities or persons under the Coordination Agreement and pursuant to its terms);
(iii) deposit any securities of Check-Cap in any voting trust or subject any securities of Check-Cap to any arrangement or agreement with respect to the exclusion set forth in Rule 14a-1(l)(2)(iv) under the Exchange Act from the definition voting of “solicitation”)]2 to vote any Company Common Shares (or other equity securities of Check-Cap, other than any such voting trust, arrangement or agreement solely among the Companymembers of EquityLine and otherwise in accordance with this Agreement;
(iv) seek or submit, or knowingly encourage any person or entity to seek or submit, nomination(s) in furtherance of a “contested solicitation” for the election or removal of directors with respect to Check-Cap or seek, knowingly encourage or, subject to Section 1 above, take any other action with respect to the appointment, election or removal of any directors not in accordance with this Agreement;
(v) (A) submit, initiate, make or be a proponent of any proposal for consideration by shareholders at any annual or extraordinary general meeting of shareholders of Check-Cap, (B) submit, initiate, make or be a proponent of any offer or proposal (with or without conditions) with respect to any matter merger, acquisition, recapitalization, restructuring, disposition or other business combination involving Check-Cap, (includingC) initiate, knowingly encourage or affirmatively solicit a third party to make an offer or proposal (with or without limitationconditions) with respect to any merger, acquisition, recapitalization, restructuring, disposition or other business combination involving Check-Cap, or publicly encourage or support any contested solicitation for third party in making such an offer or proposal, (D) publicly comment on any third party proposal (other than as permitted by this Agreement) regarding any merger, acquisition, recapitalization, restructuring, disposition, or other business combination with respect to Check-Cap by such third party, (E) call or seek to call, or request the election call of, alone or in concert with others, an extraordinary general meeting of directors shareholders of Check-Cap, including any “town hall” meeting or (F) initiate, knowingly encourage or participate in any “withhold” or similar campaign with respect to any annual or extraordinary general meeting of shareholders of Check-Cap;
(vi) seek, alone or in concert with others, representation on the Check-Cap Board of Directors (the “Board”);
(vii) advise, knowingly encourage, support or knowingly influence any person or entity with respect to the Company)voting or disposition of any securities of Check-Cap at any annual or extraordinary general meeting of shareholders, other than solicitations or acting as a participant except in support of all of the Company’s nominees [including, without limitation, the nominees of the Block Sale Transferee pursuant to Article 5]3accordance with Section 1 above;
(bviii) formmake any request or submit any proposal to amend the terms of this Agreement other than through non-public communications with Check-Cap that would not be reasonably determined to trigger public disclosure obligations for any Party;
(ix) seek publicly, join alone or in concert with others, to amend any provision of the articles of association of Check-Cap, or engage in other actions that may impede the acquisition of control of Check-Cap by any person;
(x) demand an inspection of Check-Cap’s books and records;
(xi) (i) make any public proposal with respect to, (ii) make any public statement or otherwise seek to advise, assist or knowingly encourage any person in so encouraging or advising with respect to or (iii) initiate, knowingly encourage or in any way participate in, directly or indirectly: (A) any change in the number or term of directors serving on the Board or the filling of any vacancies on the Board, (B) any change in the capitalization, share repurchase programs and practices or dividend policy of Check-Cap, (C) any other change in Check-Cap’s management, governance, corporate structure, affairs or policies, (D) any tender offer, exchange offer, merger, consolidation, acquisition, business combination, sale, recapitalization, restructuring, or other transaction with a third party that, in each case, results in a group change in control of Check-Cap or the sale of substantially all of its assets (an “Extraordinary Transaction”), (E) causing a class of securities of Check-Cap to be delisted from, or to cease to be authorized to be quoted on, any securities exchange or (F) causing a class of equity securities of Check-Cap to become eligible for termination of registration pursuant to Section 12(g)(4) of the avoidance of doubtExchange Act;
(xii) initiate, the Block Sale Transferee shall not be deemed to have formed, joined in make or in any way participated participate, directly or indirectly, in a group any Extraordinary Transaction or make, directly or indirectly, any proposal, either alone or in concert with the Company as a result of the Block Sale Transferee’s execution of this Agreement) with respect others, to the Company Common Shares (or other equity securities of the Company) or deposit any Company Common Shares (or other equity securities of the Company) in a voting trust or similar arrangement or subject any Company Common Shares (or other equity securities of the Company) to any voting agreement or similar arrangement, or grant any proxy with respect to any Company Common Shares (or other equity securities of the Company) (other than to a designated representative of the 1 Note to form: bracketed language to be removed if Block Sale Transferee does not accept the board nomination rights. 2 Note to form: bracketed language to be removed if Block Sale Transferee does not accept the board nomination rights. 3 Note to form: bracketed language to be removed if Block Sale Transferee does not accept the board nomination rights. Company pursuant to a proxy statement of the Company), other than as contemplated by the Governance Agreement Check-Cap or the Stockholders Agreement Board that would reasonably be expected to require a public announcement or the transactions contemplated therebydisclosure regarding any such matter;
(c) seek to call, or to request the calling of, or call a special meeting of the stockholders of the Company, or seek to make, or make, a stockholder proposal (whether pursuant to Rule 14a-8 under the Exchange Act or otherwise) at any meeting of the stockholders of the Company, or make a request for a list of the Company’s stockholders, or[, other than pursuant to the Block Sale Transferee’s nomination rights in accordance with Article 5 of this Agreement,]4 seek election of a representative to the Board of Directors, seek to place a representative on the Board of Directors or seek the removal of any director from the Board of Directors, or otherwise acting alone, or by participating in a group, seek to control or influence the governance or policies of the Company;
(dxiii) effect or seek to effect (including, without limitation, by entering into any discussions, negotiations, agreements or understandings whether or not legally enforceable with any third Person)effect, offer or propose (whether publicly or otherwise) to effect, or cause or participate in, or in any way assist or facilitate any other Person person to effect or seek, offer or propose (whether publicly or otherwise) to effect or participate in in, any (i) material acquisition of any Company Common Shares assets or businesses of Check-Cap or any of its subsidiaries; (or other equity securities of the Companyii) (or Beneficial Ownership thereof) in excess of the Ownership Limitation, except in accordance with Section 2.1; provided, that, for the avoidance of doubt, the Block Sale Transferee is permitted to Transfer to an unaffiliated third party any Company Common Shares (or other equity securities of the Company) Beneficially Owned by the Block Sale Transferee, subject to the provisions of Article 8 hereof, if applicable;
(e) effect or seek to effect (including, without limitation, by entering into any discussions, negotiations, agreements or understandings whether or not legally enforceable with any third Person), offer or propose (whether publicly or otherwise) to effect, or cause or participate in, or in any way assist or facilitate any other Person to effect or seek, offer or propose (whether publicly or otherwise) to effect or participate in (i) any tender offer or exchange offer, merger, acquisition, share exchange or other business combination involving any of the Company voting securities or any of the material assets or businesses of Check-Cap or any of its Subsidiaries, subsidiaries; or (iiiii) any recapitalization, restructuring, liquidation, dissolution or other extraordinary material transaction with respect to the Company Check-Cap or any of its Subsidiaries subsidiaries or any material portion of its or their businesses;
(xiv) institute, solicit, join (as a party) or (iii) assist any acquisition of any material assets litigation, arbitration or businesses of the Company other proceeding against Check-Cap or any of its Subsidiaries;
(f) publicly disclose, current or cause or, in a material manner, facilitate the public disclosure former directors or officers (including without limitation through derivative actions) other than (i) litigation by the filing by it of any document or report with the SEC or any other governmental agency or any disclosure Shareholders to any 4 Note to form: bracketed language to be removed if Block Sale Transferee does not accept the board nomination rights. journalist, member of the media or securities analyst) of any intent, purpose, plan or proposal to obtain any waiver, or consent under, or any amendment of, any of enforce the provisions of Section 2.1, this Section 3.1, or Article 4 (except as described in Section 4.1) or bring any action to (i) contest the validity of Section 2.1, this Section 3.1 or Article 4, or (ii) seek a release from the restrictions contained in Section 2.1, this Section 3.1 or Article 4;
(g) unless required by law, make or issue or cause to be made or issued any public disclosure, announcement or statement (including without limitation the filing of any document or report with the SEC or any other governmental agency or any disclosure to any journalist, member of the media or securities analyst) (i) in support of any solicitation described in paragraph (a) above (other than solicitations by the Company)Agreement, (ii) in support the exercise of any matter described in paragraph (c) abovestatutory appraisal rights, (iii) concerning making counterclaims with respect to any potential matter described in paragraph (d) above; proceeding initiated by, or on behalf of, Check-Cap or its Affiliates against any Shareholder or their Affiliates, or (iv) concerning responding to or complying with any potential matter described in paragraph (e) above; or (v) negatively commenting upon the Company’s corporate strategy, business, corporate activities, board of directors or management (for the avoidance of doubt, making any factual statement about the Company’s corporate strategy, business, corporate activities, board of directors or management shall not be prohibited by this Section 3.1(g)(v)); orvalidly issued legal process;
(hxv) facilitate, support, knowingly encourage, or participate in or enter into any discussions, negotiations, agreements or understandings with any Person third party with respect to any of the foregoing foregoing, or advise, assist assist, knowingly encourage or seek to persuade others any third party to take any action with respect to any of the foregoing. Notwithstanding the foregoing, (a) [the restrictions in Sections 3.1(d), 3.1(e), 3.1(f), 3.1(g)(iii), 3.1(g)(iv), 3.1(g)(v) and 3.1(h) (to the extent it relates to or otherwise take or cause any action inconsistent with any of the foregoing; or
(xvi) shall not apply at any time that (i) the Company fails to comply in all material respects with its obligations under Article 5 hereof, which failure continues unremedied for a period of 10 business days following receipt by the Company of a written notice from the Block Sale Transferee of such failure publicly make or (ii) the Block Sale Transferee has relinquished its nomination rights pursuant to Article 5 and all Block Sale Transferee nominated directors have resigned; or (b)]5 in the event that (x) the Board of Directors determines that the Company should engage in any transaction described in Section 3.1(e)(i) way advance publicly any request or 3.1(e)(ii), the Block Sale Transferee shall be permitted to participate in such Board of Directors’ approved transaction as a shareholder on the same terms and conditions as any other shareholder of the Company, (y) the Board of Directors determines proposal that the Company should solicit from one or more Persons or enter into discussions with one or more Persons regarding, or invites any other Person or group to make a proposal (without similarly inviting the Block Sale Transferee to make a similar proposal) with respect to an acquisition of (i) all or substantially all of the equity securities or assets of the Company or any of its Subsidiaries (by merger, tender offer or otherwise) or (ii) any material assets or businesses of the Company or any of its Subsidiaries, the Block Sale Transferee shall have the right to make a nonCheck-public competing proposal to the Board of Directors in compliance with any written procedures generally applicable to Persons making proposals provided by the Company 5 Note to form: enumerated restrictions to be removed if the Block Sale Transferee does not accept the board nomination rights. Cap or the Board of Directors amend, modify or (z) waive any third party that is not an Affiliate of the Block Sale Transferee makes a bona fide offer or proposal, with respect to a matter described in Section 3.1(d) or 3.1(e) above (a “Third Party Proposal”), the Block Sale Transferee (A) shall have the right to make a non-public competing proposal to the Board of Directors and may publicly announce that it has made a competing proposal to the Board of Directors so long as such public announcement does not constitute an offer or a solicitation to any recipient thereof and (B) may tender, exchange or otherwise sell or transfer its Company Common Shares (or other equity securities of the Company) to such third party in accordance with the Third Party Proposal; provided, however, that in the case of clauses (y) and (z), the Block Sale Transferee shall be prohibited from participating with, joining in a group with or providing financing to any such third party). [For the avoidance of doubt, any discussions involving the directors nominated by the Block Sale Transferee pursuant to Article 5 hereof (i) at a meeting of the Board of Directors or (ii) with management of the Company, other members of the Board of Directors or any of the Company’s advisors or representatives, in the case of clauses (i) and (ii), while acting in such directors’ capacity as members of the Board of Directors, shall not be deemed to violate any of the provisions provision of this Article 3.]6Agreement.
Appears in 2 contracts
Samples: Support Agreement (EquityLine Alternate Assets GP Inc.), Support Agreement (Check-Cap LTD)
Standstill Provisions. During (a) Starboard agrees that, from the date of this Agreement until the earlier of (x) the date that is fifteen (15) business days prior to the deadline for the submission of shareholder nominations for the 2020 Annual Meeting pursuant to the Company’s Bylaws or (y) the date that is ninety (90) days prior to the first anniversary of the 2019 Annual Meeting (the “Standstill Period”), unless expressly authorized in writing to do so by a majority neither it nor any of the members of the Board of Directors, acting through a committee of directors that qualify as “independent directors” as defined by applicable stock exchange listing rules [(which term, for this purpose, will exclude any directors nominated by the Block Sale Transferee)]1, the Block Sale Transferee shall notits controlled Affiliates or Associates will, and shall it will cause each of its controlled Affiliates and Associates not to, directly or indirectly, acting alone or as part of a groupin any manner:
(ai) makeengage in any solicitation of proxies or consents or become a “participant” in a “solicitation” (as such terms are defined in Regulation 14A under the Exchange Act) of proxies or consents (including, without limitation, any solicitation of consents that seeks to call a special meeting of shareholders), in each case, with respect to securities of the Company;
(ii) form, join or in any way participate in any solicitation “group” (within the meaning of any proxy [(but without regard to the exclusion set forth in Rule 14a-1(l)(2)(ivSection 13(d)(3) under of the Exchange Act from the definition of “solicitation”)]2 to vote any Company Common Shares (or other equity securities of the CompanyAct) with respect to the Common Stock; with respect to the shares of Common Stock (other than a “group” that includes only all or some of the entities or persons identified on the signature pages hereto as of the date hereof; provided, however, that nothing herein shall limit the ability of an Affiliate of Starboard to join the “group” following the execution of this Agreement, so long as any matter such Affiliate agrees to be bound by the terms and conditions of this Agreement;
(includingiii) deposit any shares of Common Stock in any voting trust or subject any shares of Common Stock to any arrangement or agreement with respect to the voting of any shares of Common Stock, without limitationother than any such voting trust, arrangement or agreement solely among the members of Starboard and otherwise in accordance with this Agreement;
(iv) seek or submit, or encourage any person or entity to seek or submit, nominations in furtherance of a “contested solicitation solicitation” for the appointment, election or removal of directors with respect to the Company)Company or seek, encourage or take any other than solicitations action with respect to the appointment, election or acting removal of any directors; provided, however, that nothing in this Agreement shall prevent Starboard or any of its Affiliates or Associates from taking actions in furtherance of identifying director candidates in connection with the 2020 Annual Meeting so long as such actions do not create a participant public disclosure obligation for Starboard or the Company and are not publicly disclosed by Starboard or its representatives or Affiliates and are undertaken on a basis reasonably designed to be confidential and in support of accordance in all of material respects with Starboard’s normal practices in the Company’s nominees [including, without limitation, the nominees of the Block Sale Transferee pursuant to Article 5]3circumstances;
(bA) form, join in make any proposal for consideration by shareholders at any annual or in any way participate in a group (for the avoidance special meeting of doubt, the Block Sale Transferee shall not be deemed to have formed, joined in or in any way participated in a group with shareholders of the Company as or through any written consent of shareholders, (B) 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 Starboard (or its Affiliates or Associates) and the Company, (C) affirmatively solicit a result of third party to make an 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 the Block Sale Transferee’s execution of this AgreementCompany, or publicly encourage, initiate or support any third party in making such an offer or proposal, (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 the Company Common Shares by such third party prior to such proposal becoming public or (E) call or other equity securities of the Company) or deposit any Company Common Shares (or other equity securities of the Company) in a voting trust or similar arrangement or subject any Company Common Shares (or other equity securities of the Company) to any voting agreement or similar arrangement, or grant any proxy with respect to any Company Common Shares (or other equity securities of the Company) (other than to a designated representative of the 1 Note to form: bracketed language to be removed if Block Sale Transferee does not accept the board nomination rights. 2 Note to form: bracketed language to be removed if Block Sale Transferee does not accept the board nomination rights. 3 Note to form: bracketed language to be removed if Block Sale Transferee does not accept the board nomination rights. Company pursuant to a proxy statement of the Company), other than as contemplated by the Governance Agreement or the Stockholders Agreement or the transactions contemplated thereby;
(c) seek to call, or to request the calling of, or call a special meeting of the stockholders of the Company, shareholders or seek to make, or make, a stockholder proposal (whether pursuant to Rule 14a-8 under the Exchange Act or otherwise) at any meeting of the stockholders of the Company, or make a request for a list of the Company’s stockholders, or[, other than pursuant to the Block Sale Transferee’s nomination rights in accordance with Article 5 of this Agreement,]4 seek election of a representative to the Board of Directors, seek to place a representative on the Board of Directors or seek the removal of any director from the Board of Directors, or otherwise acting alone, or act by participating in a group, seek to control or influence the governance or policies of the Companywritten consent;
(dvi) effect seek, alone or in concert with others, representation on the Board, except as specifically permitted in Section 1;
(vii) seek to effect (includingadvise, without limitationencourage, by entering into support or influence any discussions, negotiations, agreements person or understandings whether entity with respect to the voting or not legally enforceable with any third Person), offer or propose (whether publicly or otherwise) to effect, or cause or participate in, or in any way assist or facilitate any other Person to effect or seek, offer or propose (whether publicly or otherwise) to effect or participate in any acquisition disposition of any Company Common Shares (or other equity securities of the Company) (Company at any annual or Beneficial Ownership thereof) in excess special meeting of the Ownership Limitationshareholders or consent solicitation, except in accordance with Section 2.11; provided, that, for the avoidance of doubt, the Block Sale Transferee is permitted to Transfer to an unaffiliated third party any Company Common Shares (or other equity securities of the Company) Beneficially Owned by the Block Sale Transferee, subject to the provisions of Article 8 hereof, if applicable;or
(eviii) effect make any request or seek submit any proposal to effect amend the terms of this Agreement other than through non-public communications with the Company that would not be reasonably determined to trigger public disclosure obligations for any Party.
(including, without limitation, by entering into any discussions, negotiations, agreements b) Except as expressly provided in Section 1 or understandings whether or not legally enforceable with any third PersonSection 2(a), offer or propose (whether publicly or otherwise) to effect, or cause or participate in, or in any way assist or facilitate any other Person to effect or seek, offer or propose (whether publicly or otherwise) to effect or participate in (i) any tender offer or exchange offer, merger, acquisition, share exchange or other business combination involving the Company or any of its Subsidiaries, (ii) any recapitalization, restructuring, liquidation, dissolution or other extraordinary transaction with respect to the Company or any of its Subsidiaries or any material portion of its or their businesses, or (iii) any acquisition of any material assets or businesses of the Company or any of its Subsidiaries;
(f) publicly disclose, or cause or, in a material manner, facilitate the public disclosure (including without limitation through the filing by it of any document or report with the SEC or any other governmental agency or any disclosure to any 4 Note to form: bracketed language to Starboard shall be removed if Block Sale Transferee does not accept the board nomination rights. journalist, member of the media or securities analyst) of any intent, purpose, plan or proposal to obtain any waiver, or consent under, or any amendment of, any of the provisions of Section 2.1, this Section 3.1, or Article 4 (except as described in Section 4.1) or bring any action entitled to (i) contest vote the validity shares of Section 2.1, this Section 3.1 or Article 4, or Common Stock that it beneficially owns as it determines in its sole discretion and (ii) seek a release from the restrictions contained in Section 2.1disclose, this Section 3.1 publicly or Article 4;
(g) unless required by lawotherwise, make how it intends to vote or issue or cause to be made or issued any public disclosure, announcement or statement (including without limitation the filing of any document or report with the SEC or any other governmental agency or any disclosure to any journalist, member of the media or securities analyst) (i) in support of any solicitation described in paragraph (a) above (other than solicitations by the Company), (ii) in support of any matter described in paragraph (c) above, (iii) concerning any potential matter described in paragraph (d) above; (iv) concerning any potential matter described in paragraph (e) above; or (v) negatively commenting upon the Company’s corporate strategy, business, corporate activities, board of directors or management (for the avoidance of doubt, making any factual statement about the Company’s corporate strategy, business, corporate activities, board of directors or management shall not be prohibited by this Section 3.1(g)(v)); or
(h) enter into any discussions, negotiations, agreements or understandings with any Person act with respect to any securities of the foregoing Company on any shareholder proposal or advise, assist or seek other matter to persuade others to take any action with respect to any be voted on by the shareholders of the foregoing. Notwithstanding Company and the foregoing, reasons therefor.
(ac) [Nothing in Section 2(a) or elsewhere in this Agreement shall be deemed to limit the restrictions exercise in Sections 3.1(d), 3.1(e), 3.1(f), 3.1(g)(iii), 3.1(g)(iv), 3.1(g)(v) and 3.1(h) (to the extent it relates to any of the foregoing) shall not apply at any time that (i) the Company fails to comply in all material respects with its obligations under Article 5 hereof, which failure continues unremedied for a period of 10 business days following receipt good faith by the Company of a written notice from the Block Sale Transferee an Appointed Director of such failure or (ii) the Block Sale Transferee has relinquished its nomination rights pursuant to Article 5 and all Block Sale Transferee nominated directors have resigned; or (b)]5 in the event that (x) the Board of Directors determines that the Company should engage in any transaction described in Section 3.1(e)(i) or 3.1(e)(ii), the Block Sale Transferee shall be permitted to participate person’s fiduciary duties solely in such Board of Directors’ approved transaction person’s capacity as a shareholder on the same terms and conditions as any other shareholder director of the Company, (y) the Board of Directors determines that the Company should solicit from one or more Persons or enter into discussions with one or more Persons regarding, or invites any other Person or group to make a proposal (without similarly inviting the Block Sale Transferee to make a similar proposal) with respect to an acquisition of (i) all or substantially all of the equity securities or assets of the Company or any of its Subsidiaries (by merger, tender offer or otherwise) or (ii) any material assets or businesses of the Company or any of its Subsidiaries, the Block Sale Transferee shall have the right to make a non-public competing proposal to the Board of Directors in compliance with any written procedures generally applicable to Persons making proposals provided by the Company 5 Note to form: enumerated restrictions to be removed if the Block Sale Transferee does not accept the board nomination rights. or the Board of Directors or (z) any third party that is not an Affiliate of the Block Sale Transferee makes a bona fide offer or proposal, with respect to a matter described in Section 3.1(d) or 3.1(e) above (a “Third Party Proposal”), the Block Sale Transferee (A) shall have the right to make a non-public competing proposal to the Board of Directors and may publicly announce that it has made a competing proposal to the Board of Directors so long as such public announcement does not constitute an offer or a solicitation to any recipient thereof and (B) may tender, exchange or otherwise sell or transfer its Company Common Shares (or other equity securities of the Company) to such third party in accordance with the Third Party Proposal; provided, however, that in the case of clauses (y) and (z), the Block Sale Transferee shall be prohibited from participating with, joining in a group with or providing financing to any such third party). [For the avoidance of doubt, any discussions involving the directors nominated by the Block Sale Transferee pursuant to Article 5 hereof (i) at a meeting of the Board of Directors or (ii) with management of the Company, other members of the Board of Directors or any of the Company’s advisors or representatives, in the case of clauses (i) and (ii), while acting in such directors’ capacity as members of the Board of Directors, shall not be deemed to violate any of the provisions of this Article 3.]6.
Appears in 2 contracts
Samples: Agreement (Starboard Value LP), Shareholder Agreement (Magellan Health Inc)
Standstill Provisions. During (a) Starboard agrees that from the date of this Agreement until the earlier of (x) the date that is fifteen (15) business days prior to the deadline for the submission of stockholder nominations for the Company’s 2018 annual meeting of stockholders (the “2018 Annual Meeting”) pursuant to the Company’s Third Amended and Restated By-laws and (y) the date that is one-hundred and thirty (130) days prior to the first anniversary of the 2017 Annual Meeting (the “Standstill Period”), unless expressly authorized in writing to do so by a majority neither it nor any of the members of the Board of Directors, acting through a committee of directors that qualify as “independent directors” as defined by applicable stock exchange listing rules [(which term, for this purpose, will exclude any directors nominated by the Block Sale Transferee)]1, the Block Sale Transferee shall notits Affiliates or Associates under its control will, and shall it will cause each of its Affiliates and Associates under its control not to, directly or indirectly, acting alone or as part of a groupin any manner:
(ai) makeengage in any solicitation of proxies or consents or become a “participant” in a “solicitation” (as such terms are defined in Regulation 14A under the Exchange Act) of proxies or consents (including, without limitation, any solicitation of consents that seeks to call a special meeting of stockholders), in each case, with respect to securities of the Company;
(ii) form, join or in any way participate in any solicitation “group” (within the meaning of any proxy [(but without regard to the exclusion set forth in Rule 14a-1(l)(2)(ivSection 13(d)(3) under of the Exchange Act from the definition of “solicitation”)]2 to vote any Company Common Shares (or other equity securities of the CompanyAct) with respect to the Common Stock (other than a “group” that includes all or some of the persons identified on Exhibit A, but does not include any matter other entities or persons not identified on Exhibit A as of the date hereof); provided, however, that nothing herein shall limit the ability of an Affiliate of Starboard to join the “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;
(includingiii) deposit any Common Stock in any voting trust or subject any Common Stock to any arrangement or agreement with respect to the voting of any Common Stock, without limitationother than any such voting trust, arrangement or agreement solely among the members of Starboard and their Affiliates and otherwise in accordance with this Agreement;
(iv) seek, or encourage any person, to submit nominations in furtherance of a “contested solicitation solicitation” for the election or removal of directors with respect to the Company)Company or seek, encourage or take any other than solicitations or acting as a participant in support of all of the Company’s nominees [including, without limitation, the nominees of the Block Sale Transferee pursuant to Article 5]3;
(b) form, join in or in any way participate in a group (for the avoidance of doubt, the Block Sale Transferee shall not be deemed to have formed, joined in or in any way participated in a group with the Company as a result of the Block Sale Transferee’s execution of this Agreement) action with respect to the election or removal of any directors; provided, however, that nothing in this Agreement shall prevent Starboard or its Affiliates or Associates from taking actions in furtherance of identifying director candidates in connection with the 2018 Annual Meeting so long as such actions do not create a public disclosure obligation for Starboard or the Company Common Shares (or other equity securities of the Company) or deposit any Company Common Shares (or other equity securities of the Company) in and are undertaken on a voting trust or similar arrangement or subject any Company Common Shares (or other equity securities of the Company) to any voting agreement or similar arrangement, or grant any proxy with respect to any Company Common Shares (or other equity securities of the Company) (other than to a designated representative of the 1 Note to form: bracketed language basis reasonably designed to be removed if Block Sale Transferee does not accept confidential and in accordance in all material respects with Starboard’s normal practices in the board nomination rights. 2 Note to form: bracketed language to be removed if Block Sale Transferee does not accept the board nomination rights. 3 Note to form: bracketed language to be removed if Block Sale Transferee does not accept the board nomination rights. Company pursuant to a proxy statement of the Company), other than as contemplated by the Governance Agreement or the Stockholders Agreement or the transactions contemplated therebycircumstances;
(cA) seek to call, make any proposal for consideration by stockholders at any annual or to request the calling of, or call a special meeting of the stockholders of the Company, (B) make any offer or seek to make, or make, a stockholder proposal (whether pursuant with or without conditions) with respect to Rule 14a-8 under the Exchange Act any merger, acquisition, recapitalization, restructuring, disposition or otherwise) at any meeting of the stockholders of other business combination involving the Company, or encourage, initiate or support any other third party in any such related activity, (C) make a request for a list of any public communication in opposition to any Company acquisition or disposition activity approved by the Company’s stockholdersBoard, or[prior to such activity becoming public, other than pursuant to the Block Sale Transferee’s nomination rights in accordance with Article 5 of this Agreement,]4 seek election of a representative to the Board of Directors, seek to place a representative on the Board of Directors or (D) call or seek the removal calling of any director from the Board a special meeting of Directors, or otherwise acting alone, or by participating in a group, seek to control or influence the governance or policies of the Companystockholders;
(dvi) effect seek, alone or in concert with others, representation on the Board, except as specifically permitted in this Agreement;
(vii) seek to effect (includingadvise, without limitationencourage, by entering into support or influence any discussions, negotiations, agreements person with respect to the voting or understandings whether or not legally enforceable with any third Person), offer or propose (whether publicly or otherwise) to effect, or cause or participate in, or in any way assist or facilitate any other Person to effect or seek, offer or propose (whether publicly or otherwise) to effect or participate in any acquisition disposition of any Company Common Shares (or other equity securities of the Company) (Company at any annual or Beneficial Ownership thereof) in excess special meeting of the Ownership Limitationstockholders, except in accordance with Section 2.11; providedor
(viii) make any request or submit any proposal to amend the terms of this Agreement other than through non-public communications with the Company that would not be reasonably determined to trigger public disclosure obligations for any Party.
(b) Except as expressly provided in this Agreement, thateach of Starboard and its Affiliates and Associates under its control shall be entitled to (i) vote its shares on any other proposal duly brought before the 2017 Annual Meeting or otherwise vote as Starboard determines in its sole discretion, for the avoidance of doubt(ii) disclose, the Block Sale Transferee is permitted publicly or otherwise, how it intends to Transfer vote or act with respect to an unaffiliated third party any Company Common Shares (or other equity securities of the Company) Beneficially Owned , any stockholder proposal or other matter to be voted on by the Block Sale Transfereestockholders of the Company and the reasons therefor (in each case, subject to the provisions of Article 8 hereof, if applicable;
(e) effect or seek to effect (including, without limitation, by entering into any discussions, negotiations, agreements or understandings whether or not legally enforceable with any third PersonSection 1(l)(iii)), offer or propose (whether publicly or otherwise) to effect, or cause or participate in, or in any way assist or facilitate any other Person to effect or seek, offer or propose (whether publicly or otherwise) to effect or participate in (i) any tender offer or exchange offer, merger, acquisition, share exchange or other business combination involving the Company or any of its Subsidiaries, (ii) any recapitalization, restructuring, liquidation, dissolution or other extraordinary transaction with respect to the Company or any of its Subsidiaries or any material portion of its or their businesses, or and (iii) any acquisition of any material assets or businesses of the Company or any of its Subsidiaries;
(f) publicly disclosecommunicate with other companies, or cause or, in a material manner, facilitate the public disclosure (including without limitation through the filing by it of any document or report with the SEC or any other governmental agency or any disclosure to any 4 Note to form: bracketed language to be removed if Block Sale Transferee does not accept the board nomination rights. journalist, member of the media or securities analyst) of any intent, purpose, plan or proposal to obtain any waiver, or consent under, or any amendment of, any of the provisions of Section 2.1, this Section 3.1, or Article 4 (except as described in Section 4.1) or bring any action to (i) contest the validity of Section 2.1, this Section 3.1 or Article 4, or (ii) seek a release from the restrictions contained in Section 2.1, this Section 3.1 or Article 4;
(g) unless required by law, make or issue or cause to be made or issued any public disclosure, announcement or statement (including without limitation the filing of any document or report with the SEC or any other governmental agency or any disclosure to any journalist, member of the media or securities analyst) (i) in support of any solicitation described in paragraph (a) above (other than solicitations by the Company), (ii) in support of any matter described in paragraph (c) above, (iii) concerning any competitors and potential matter described in paragraph (d) above; (iv) concerning any potential matter described in paragraph (e) above; or (v) negatively commenting upon the Company’s corporate strategy, business, corporate activities, board of directors or management (for the avoidance of doubt, making any factual statement about the Company’s corporate strategy, business, corporate activities, board of directors or management shall not be prohibited by this Section 3.1(g)(v)); or
(h) enter into any discussions, negotiations, agreements or understandings with any Person with respect to any of the foregoing or advise, assist or seek to persuade others to take any action with respect to any of the foregoing. Notwithstanding the foregoing, (a) [the restrictions in Sections 3.1(d), 3.1(e), 3.1(f), 3.1(g)(iii), 3.1(g)(iv), 3.1(g)(v) and 3.1(h) (to the extent it relates to any of the foregoing) shall not apply at any time that (i) the Company fails to comply in all material respects with its obligations under Article 5 hereof, which failure continues unremedied for a period of 10 business days following receipt by the Company of a written notice from the Block Sale Transferee of such failure or (ii) the Block Sale Transferee has relinquished its nomination rights pursuant to Article 5 and all Block Sale Transferee nominated directors have resigned; or (b)]5 in the event that (x) the Board of Directors determines that the Company should engage in any transaction described in Section 3.1(e)(i) or 3.1(e)(ii), the Block Sale Transferee shall be permitted to participate in such Board of Directors’ approved transaction as a shareholder on the same terms and conditions as any other shareholder strategic partners of the Company, in the ordinary course of Starboard’s business in connection with Starboard’s research and evaluation of other companies.
(yc) To the Board of Directors determines extent that the Company should solicit from one Starboard Replacement Director is a principal or more Persons employee of Starboard, nothing in this Section 2(a) shall be deemed to limit the exercise in good faith by such Starboard Replacement Director of his or enter into discussions with one her fiduciary duties solely in his or more Persons regarding, or invites any other Person or group to make her capacity as a proposal (without similarly inviting the Block Sale Transferee to make a similar proposal) with respect to an acquisition of (i) all or substantially all director of the equity securities or assets of the Company or any of its Subsidiaries Company.
(by merger, tender offer or otherwised) or (ii) any material assets or businesses of the Company or any of its Subsidiaries, the Block Sale Transferee shall have the right to make a non-public competing proposal to the Board of Directors in compliance with any written procedures generally applicable to Persons making proposals provided by the Company 5 Note to form: enumerated restrictions to be removed if the Block Sale Transferee does not accept the board nomination rights. or the Board of Directors or (z) any third party that is not an Affiliate of the Block Sale Transferee makes a bona fide offer or proposal, with respect to a matter described Nothing in Section 3.1(d) or 3.1(e) above (a “Third Party Proposal”), the Block Sale Transferee (A2(a) shall have be deemed to prohibit Starboard and its Affiliates and Associates from communicating privately with the right to make a non-public competing proposal to the Board of Directors Company’s directors, officers, and may publicly announce that it has made a competing proposal to the Board of Directors advisors so long as such public announcement does not constitute an offer or a solicitation to any recipient thereof and (B) may tender, exchange or otherwise sell or transfer its Company Common Shares (or other equity securities of the Company) to such third party in accordance with the Third Party Proposal; provided, however, that in the case of clauses (y) and (z), the Block Sale Transferee shall be prohibited from participating with, joining in a group with or providing financing to any such third party). [For the avoidance of doubt, any discussions involving the directors nominated by the Block Sale Transferee pursuant to Article 5 hereof (i) at a meeting of the Board of Directors or (ii) with management of the Company, other members of the Board of Directors or any of the Company’s advisors or representatives, in the case of clauses (i) and (ii), while acting in such directors’ capacity as members of the Board of Directors, shall private communications would not be deemed reasonably determined to violate trigger public disclosure obligations for any of the provisions of this Article 3.]6Party.
Appears in 2 contracts
Samples: Board Composition Agreement (Starboard Value LP), Board Composition Agreement (Stewart Information Services Corp)
Standstill Provisions. During (a) Prior to the Standstill PeriodTermination Date, unless expressly authorized except as otherwise provided in writing to do so by a majority this Agreement, without the prior written consent of the members of the Board of Directors, acting through a committee of directors that qualify as “independent directors” as defined by applicable stock exchange listing rules [(which term, for this purpose, will exclude any directors nominated by the Block Sale Transferee)]1Board, the Block Sale Transferee Pale Fire Parties shall not, and the Pale Fire Parties shall cause its each of their controlled Affiliates and Associates not to, in each case directly or indirectly, acting alone or as part of a groupin any manner:
(ai) makeengage in any solicitation of proxies or consents or become a “participant” in a “solicitation” (as such terms are defined in Regulation 14A under the Exchange Act) of proxies or consents (including, without limitation, any solicitation of consents that seeks to call a special meeting of stockholders), in each case, with respect to any securities of the Company or any securities convertible or exchangeable into or exercisable for any such securities (collectively, the “securities of the Company”);
(ii) form, join or in any way participate in any solicitation “group” (within the meaning of any proxy [(but without regard to the exclusion set forth in Rule 14a-1(l)(2)(ivSection 13(d)(3) under of the Exchange Act from Act) with any persons who are not Affiliates of the definition of “solicitation”)]2 Pale Fire Parties with respect to vote any Company Common Shares (or other equity securities of the Company;
(iii) deposit any securities of the Company in any voting trust or similar arrangement, or subject any securities of the Company to any arrangement or agreement with respect to the voting thereof, other than (A) any matter (including, without limitation, any contested solicitation 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;
(iv) seek or submit, or encourage any person or entity to seek or submit, nomination(s) in furtherance of a “contested solicitation” for the appointment, election or removal of directors with respect to the Company)Company or seek, or encourage or take any other than solicitations or acting as a participant in support of all of the Company’s nominees [including, without limitation, the nominees of the Block Sale Transferee pursuant to Article 5]3;
(b) form, join in or in any way participate in a group (for the avoidance of doubt, the Block Sale Transferee shall not be deemed to have formed, joined in or in any way participated in a group with the Company as a result of the Block Sale Transferee’s execution of this Agreement) action with respect to the Company Common Shares appointment, election or removal of any directors (or other equity securities of the Company) or deposit any Company Common Shares (or other equity securities of the Company) except as otherwise provided in a voting trust or similar arrangement or subject any Company Common Shares (or other equity securities of the Company) to any voting agreement or similar arrangement, or grant any proxy with respect to any Company Common Shares (or other equity securities of the Company) (other than to a designated representative of the 1 Note to form: bracketed language to be removed if Block Sale Transferee does not accept the board nomination rights. 2 Note to form: bracketed language to be removed if Block Sale Transferee does not accept the board nomination rights. 3 Note to form: bracketed language to be removed if Block Sale Transferee does not accept the board nomination rights. Company pursuant to a proxy statement of the CompanySection 1), other than as contemplated by the Governance Agreement or the Stockholders Agreement or the transactions contemplated thereby;
(cA) seek to call, make any proposal for consideration by stockholders at any annual or to request the calling of, or call a special meeting of stockholders of the Company or through any action by written consent of stockholders or referendum of stockholders of the Company, (B) publicly make any offer or seek to make, or make, a stockholder proposal (whether pursuant with or without conditions) with respect to Rule 14a-8 under the Exchange Act or otherwise) at any meeting of the stockholders of the Companymerger, or make a request for a list of the Company’s stockholderstakeover, or[, other than pursuant to the Block Sale Transferee’s nomination rights in accordance with Article 5 of this Agreement,]4 seek election of a representative to the Board of Directors, seek to place a representative on the Board of Directors or seek the removal of any director from the Board of Directors, or otherwise acting alone, or by participating in a group, seek to control or influence the governance or policies of the Company;
(d) effect or seek to effect (including, without limitation, by entering into any discussions, negotiations, agreements or understandings whether or not legally enforceable with any third Person), offer or propose (whether publicly or otherwise) to effect, or cause or participate in, or in any way assist or facilitate any other Person to effect or seek, offer or propose (whether publicly or otherwise) to effect or participate in any acquisition of any Company Common Shares tender (or other equity securities of the Companyexchange) (or Beneficial Ownership thereof) in excess of the Ownership Limitation, except in accordance with Section 2.1; provided, that, for the avoidance of doubt, the Block Sale Transferee is permitted to Transfer to an unaffiliated third party any Company Common Shares (or other equity securities of the Company) Beneficially Owned by the Block Sale Transferee, subject to the provisions of Article 8 hereof, if applicable;
(e) effect or seek to effect (including, without limitation, by entering into any discussions, negotiations, agreements or understandings whether or not legally enforceable with any third Person), offer or propose (whether publicly or otherwise) to effect, or cause or participate in, or in any way assist or facilitate any other Person to effect or seek, offer or propose (whether publicly or otherwise) to effect or participate in (i) any tender offer or exchange offer, merger, acquisition, share exchange recapitalization, restructuring, disposition or other business combination or similar transaction involving the Company or and/or any of its Subsidiariessubsidiaries, (iiC) affirmatively solicit a third party to make an offer or proposal (with or without conditions) with respect to any merger, takeover, tender (or exchange) offer, acquisition, recapitalization, restructuring, liquidation, dissolution disposition or other extraordinary business combination or similar transaction involving the Company and/or any of its subsidiaries, or publicly encourage, initiate or support any third party in making such an offer or proposal, (D) publicly comment on any third party proposal regarding any merger, takeover, tender (or exchange) offer, acquisition, recapitalization, restructuring, disposition, or other business combination or similar transaction with respect to the Company or and/or any of its Subsidiaries subsidiaries or (E) call or seek to call a special meeting of stockholders or take or seek to take action by written consent of stockholders (it being acknowledged that clauses (C) and (D) shall not be deemed to limit in any material portion of its way the Pale Fire Parties’ rights to (i) vote in their sole discretion with respect to any Extraordinary Transaction in accordance with Section 3 or their businesses(ii) comment on such vote in accordance with Section 4(b));
(vi) seek, alone or in concert with others, representation on the Board (except as otherwise provided in Section 1);
(vii) acquire, offer or propose to acquire, or (iii) any agree to acquire, whether by purchase, tender or exchange offer, through the acquisition of control of another person, by joining a partnership, limited partnership, syndicate or other group (including any material assets group of persons that would be treated as a single “person” under Section 13(d) of the Exchange Act), through swap or businesses hedging transactions or otherwise, any securities of the Company or any of its Subsidiaries;
(f) publicly disclose, or cause or, in a material manner, facilitate rights decoupled from the public disclosure (including without limitation through the filing by it of any document or report with the SEC or any other governmental agency or any disclosure to any 4 Note to form: bracketed language to be removed if Block Sale Transferee does not accept the board nomination rights. journalist, member underlying securities of the media Company that would result in the Pale Fire Parties (together with their Affiliates) owning, controlling or securities analyst) of otherwise having any intent, purpose, plan beneficial or proposal to obtain any waiver, or consent under, or any amendment of, any other ownership interest in more than 25% of the provisions shares of Section 2.1Common Stock outstanding at such time (as adjusted for any stock splits, this Section 3.1reclassifications, combinations, stock dividends or Article 4 (except as described in Section 4.1) or bring any action to (i) contest the validity of Section 2.1, this Section 3.1 or Article 4, or (ii) seek a release from the restrictions contained in Section 2.1, this Section 3.1 or Article 4;
(g) unless required by law, make or issue or cause to be made or issued any public disclosure, announcement or statement (including without limitation the filing of any document or report with the SEC or any other governmental agency or any disclosure to any journalist, member of the media or securities analyst) (i) in support of any solicitation described in paragraph (a) above (other than solicitations similar actions by the Company);
(viii) advise, (ii) in encourage, support or influence any person or entity with respect to the voting or disposition of any matter described securities of the Company at any annual or special meeting of stockholders except in paragraph (c) above, (iii) concerning any potential matter described in paragraph (d) above; (iv) concerning any potential matter described in paragraph (e) above; or (v) negatively commenting upon the Company’s corporate strategy, business, corporate activities, board of directors or management (for the avoidance of doubt, making any factual statement about the Company’s corporate strategy, business, corporate activities, board of directors or management shall not be prohibited by this accordance with Section 3.1(g)(v)); or3;
(hix) enter into any discussions, negotiations, agreements or understandings with any Person with respect to any of the foregoing or advise, assist or seek to persuade others to take any action third party with respect to any of the foregoing. Notwithstanding the foregoing, (a) [the restrictions in Sections 3.1(d)or advise, 3.1(e)assist, 3.1(f), 3.1(g)(iii), 3.1(g)(iv), 3.1(g)(v) and 3.1(h) (knowingly encourage or seek to the extent it relates persuade any third party to take any action or make any statement with respect to any of the foregoing; or
(x) make any request or submit any proposal to amend the terms of this Agreement other than through non-public communications with the Company or the Board that would not be reasonably determined to trigger public disclosure obligations for any Party.
(b) Except as expressly provided in Section 1(f) and Section 3, the Pale Fire Parties shall not apply at any time that be entitled to (i) vote any shares of Common Stock that they beneficially own as the Company fails to comply Pale Fire Parties determine in all material respects with its obligations under Article 5 hereof, which failure continues unremedied for a period of 10 business days following receipt by the Company of a written notice from the Block Sale Transferee of such failure or their sole discretion and (ii) the Block Sale Transferee has relinquished its nomination rights pursuant subject to Article 5 and all Block Sale Transferee nominated directors have resigned; Section 15, disclose, publicly or (b)]5 in the event that (x) the Board of Directors determines that the Company should engage in otherwise, how they intend to vote or act with respect to any transaction described in Section 3.1(e)(i) or 3.1(e)(ii), the Block Sale Transferee shall be permitted to participate in such Board of Directors’ approved transaction as a shareholder on the same terms and conditions as any other shareholder securities of the Company, (y) any stockholder proposal or other matter to be voted on by the Board stockholders of Directors determines that the Company should solicit and the reasons therefor.
(c) Notwithstanding anything in Section 4(a) or elsewhere in this Agreement, nothing in this Agreement shall prohibit or restrict the Pale Fire Parties from one or more Persons or enter into discussions with one or more Persons regarding, or invites any other Person or group to make a proposal (without similarly inviting the Block Sale Transferee to make a similar proposal) with respect to an acquisition of (i) all or substantially all of the equity securities or assets of the Company or any of its Subsidiaries (by merger, tender offer or otherwise) or (ii) any material assets or businesses of the Company or any of its Subsidiaries, the Block Sale Transferee shall have the right to make a non-public competing proposal to communicating privately with the Board of Directors in compliance with any written procedures generally applicable to Persons making proposals provided by the Company 5 Note to form: enumerated restrictions to be removed if the Block Sale Transferee does not accept the board nomination rights. or the Board of Directors or (z) any third party that is not an Affiliate of the Block Sale Transferee makes a bona fide offer or proposal, with respect to a matter described in Section 3.1(d) or 3.1(e) above (a “Third Party Proposal”), the Block Sale Transferee (A) shall have the right to make a non-public competing proposal to the Board of Directors and may publicly announce that it has made a competing proposal to the Board of Directors so long as such public announcement does not constitute an offer or a solicitation to any recipient thereof and (B) may tender, exchange or otherwise sell or transfer its Company Common Shares (or other equity securities of the Company) to such third party in accordance with the Third Party Proposal; provided, however, that in the case of clauses (y) and (z), the Block Sale Transferee shall be prohibited from participating with, joining in a group with or providing financing to any such third party). [For the avoidance of doubt, any discussions involving the directors nominated by the Block Sale Transferee pursuant to Article 5 hereof (i) at a meeting of the Board of Directors or (ii) with management of the Company, other members of the Board of Directors or any of the Company’s advisors or representativesofficers regarding any matter, in the case so long as such communications are not intended to, and would not reasonably be expected to, require any public disclosure of clauses (i) and such communications, (ii), while acting in such directors’ capacity as members ) communicating with stockholders of the Board of DirectorsCompany and others in a manner that does not otherwise violate Section 4(a) or Section 15, or (iii) taking any action necessary to comply with any law, rule or regulation or any action required by any governmental or regulatory authority or stock exchange that has jurisdiction over the Pale Fire Parties.
(d) Nothing in Section 4(a) or elsewhere in this Agreement shall not be deemed to violate limit the exercise in good faith by any New Director of such person’s fiduciary duties solely in such person’s capacity as a director of the provisions of this Article 3.]6Company.
Appears in 2 contracts
Samples: Cooperation Agreement (Groupon, Inc.), Cooperation Agreement (Barta Jan)
Standstill Provisions. During (a) Starboard agrees that, from the date of this Agreement until the earlier of (x) the date that is fifteen (15) business days prior to the deadline for the submission of stockholder nominations for the 2017 annual general meeting of stockholders (the “2017 Annual General Meeting”) pursuant to the Bylaws or (y) the date that is one hundred (100) days prior to the first anniversary of the 2016 Annual General Meeting (the “Standstill Period”), unless expressly authorized in writing to do so by a majority neither it nor any of the members of the Board of Directors, acting through a committee of directors that qualify as “independent directors” as defined by applicable stock exchange listing rules [(which term, for this purpose, will exclude any directors nominated by the Block Sale Transferee)]1, the Block Sale Transferee shall notits Affiliates or Associates under its control will, and shall it will cause each of its Affiliates and Associates under its control not to, directly or indirectly, acting alone or as part of a groupin any manner:
(ai) makeengage in any solicitation of proxies or consents or become a “participant” in a “solicitation” (as such terms are defined in Regulation 14A under the Exchange Act) of proxies or consents (including, without limitation, any solicitation of consents that seeks to call a special meeting of stockholders), in each case, with respect to securities of the Company;
(ii) form, join or in any way participate in any solicitation “group” (within the meaning of any proxy [(but without regard to the exclusion set forth in Rule 14a-1(l)(2)(ivSection 13(d)(3) under of the Exchange Act from the definition of “solicitation”)]2 to vote any Company Common Shares (or other equity securities of the CompanyAct) with respect to the Common Stock (other than a “group” that includes all or some of the entities or persons identified on Exhibit A, but does not include any matter other entities or persons not identified on Exhibit A as of the date hereof); provided, however, that nothing herein shall limit the ability of an Affiliate of Starboard to join the “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;
(includingiii) deposit any Common Stock in any voting trust or subject any Common Stock to any arrangement or agreement with respect to the voting of any Common Stock, without limitationother than any such voting trust, arrangement or agreement solely among the members of Starboard and otherwise in accordance with this Agreement;
(iv) seek, or encourage any person or entity, to submit nominations in furtherance of a “contested solicitation solicitation” for the election or removal of directors with respect to the Company)Company or seek, encourage or take any other than solicitations action with respect to the election or acting removal of any directors; provided, however, that nothing in this Agreement shall prevent Starboard or its Affiliates or Associates from taking actions in furtherance of identifying director candidates in connection with the 2017 Annual General Meeting so long as such actions do not create a participant public disclosure obligation for Starboard or the Company and are undertaken on a basis reasonably designed to be confidential and in support accordance in all material respects with Starboard’s normal practices in the circumstances;
(A) make any proposal for consideration by stockholders at any annual or special meeting of all stockholders of the Company’s nominees [including, (B) make any offer or proposal (with or without limitationconditions) with respect to any merger, acquisition, recapitalization, restructuring, disposition or other business combination involving Starboard and the nominees of Company, (C) affirmatively solicit a third party to make an offer or proposal (with or without conditions) with respect to any merger, acquisition, recapitalization, restructuring, disposition or other business combination involving the Block Sale Transferee pursuant to Article 5]3;
Company, or publicly encourage, initiate or support any third party in making such an offer or proposal, (bD) formpublicly comment on any third party proposal regarding any merger, join in acquisition, recapitalization, restructuring, disposition, or in any way participate in a group (for the avoidance of doubt, the Block Sale Transferee shall not be deemed to have formed, joined in or in any way participated in a group with the Company as a result of the Block Sale Transferee’s execution of this Agreement) other business combination with respect to the Company Common Shares by such third party prior to such proposal becoming public or (E) call or other equity securities of the Company) or deposit any Company Common Shares (or other equity securities of the Company) in a voting trust or similar arrangement or subject any Company Common Shares (or other equity securities of the Company) to any voting agreement or similar arrangement, or grant any proxy with respect to any Company Common Shares (or other equity securities of the Company) (other than to a designated representative of the 1 Note to form: bracketed language to be removed if Block Sale Transferee does not accept the board nomination rights. 2 Note to form: bracketed language to be removed if Block Sale Transferee does not accept the board nomination rights. 3 Note to form: bracketed language to be removed if Block Sale Transferee does not accept the board nomination rights. Company pursuant to a proxy statement of the Company), other than as contemplated by the Governance Agreement or the Stockholders Agreement or the transactions contemplated thereby;
(c) seek to call, or to request the calling of, or call a special meeting of the stockholders of the Company, or seek to make, or make, a stockholder proposal (whether pursuant to Rule 14a-8 under the Exchange Act or otherwise) at any meeting of the stockholders of the Company, or make a request for a list of the Company’s stockholders, or[, other than pursuant to the Block Sale Transferee’s nomination rights in accordance with Article 5 of this Agreement,]4 seek election of a representative to the Board of Directors, seek to place a representative on the Board of Directors or seek the removal of any director from the Board of Directors, or otherwise acting alone, or by participating in a group, seek to control or influence the governance or policies of the Company;
(dvi) effect seek, alone or in concert with others, representation on the Board, except as specifically permitted in Section 1;
(vii) seek to effect (includingadvise, without limitationencourage, by entering into support or influence any discussions, negotiations, agreements person or understandings whether entity with respect to the voting or not legally enforceable with any third Person), offer or propose (whether publicly or otherwise) to effect, or cause or participate in, or in any way assist or facilitate any other Person to effect or seek, offer or propose (whether publicly or otherwise) to effect or participate in any acquisition disposition of any Company Common Shares (or other equity securities of the Company) (Company at any annual or Beneficial Ownership thereof) in excess special meeting of the Ownership Limitationstockholders, except in accordance with Section 2.11; providedor
(viii) make any request or submit any proposal to amend the terms of this Agreement other than through non-public communications with the Company that would not be reasonably determined to trigger public disclosure obligations for any Party.
(b) Except as expressly provided in Section 1 or Section 2(a), thatStarboard shall be entitled to (i) vote its shares on any other proposal duly brought before the 2016 Annual General Meeting or otherwise vote as Starboard determines in its sole discretion and (ii) disclose, for the avoidance of doubtpublicly or otherwise, the Block Sale Transferee is permitted how it intends to Transfer vote or act with respect to an unaffiliated third party any Company Common Shares (or other equity securities of the Company) Beneficially Owned , any stockholder proposal or other matter to be voted on by the Block Sale Transfereestockholders of the Company and the reasons therefor (in each case, subject to the provisions of Article 8 hereof, if applicable;Section 1(f)(iii)).
(ec) effect or seek Nothing in Section 2(a) shall be deemed to effect (including, without limitation, limit the exercise in good faith by entering into any discussions, negotiations, agreements or understandings whether or not legally enforceable with any third Person), offer or propose (whether publicly or otherwise) to effect, or cause or participate in, or the Appointed Directors of their fiduciary duties solely in any way assist or facilitate any other Person to effect or seek, offer or propose (whether publicly or otherwise) to effect or participate in (i) any tender offer or exchange offer, merger, acquisition, share exchange or other business combination involving the Company or any of its Subsidiaries, (ii) any recapitalization, restructuring, liquidation, dissolution or other extraordinary transaction with respect to the Company or any of its Subsidiaries or any material portion of its or their businesses, or (iii) any acquisition of any material assets or businesses his capacity as directors of the Company or any of its Subsidiaries;
(f) publicly disclose, or cause or, and in a material manner, facilitate the public disclosure (including without limitation through the filing by it of any document or report manner consistent with the SEC or any other governmental agency or any disclosure to any 4 Note to form: bracketed language to be removed if Block Sale Transferee does not accept the board nomination rights. journalist, member of the media or securities analyst) of any intent, purpose, plan or proposal to obtain any waiver, or consent under, or any amendment of, any of the provisions of Section 2.1, this Section 3.1, or Article 4 (except as described in Section 4.1) or bring any action to (i) contest the validity of Section 2.1, this Section 3.1 or Article 4, or (ii) seek a release from the restrictions contained in Section 2.1, this Section 3.1 or Article 4;
(g) unless required by law, make or issue or cause to be made or issued any public disclosure, announcement or statement (including without limitation the filing of any document or report with the SEC or any other governmental agency or any disclosure to any journalist, member of the media or securities analyst) (i) in support of any solicitation described in paragraph (a) above (other than solicitations by the Company), (ii) in support of any matter described in paragraph (c) above, (iii) concerning any potential matter described in paragraph (d) above; (iv) concerning any potential matter described in paragraph (e) above; or (v) negatively commenting upon the Companytheir and Starboard’s corporate strategy, business, corporate activities, board of directors or management (for the avoidance of doubt, making any factual statement about the Company’s corporate strategy, business, corporate activities, board of directors or management shall not be prohibited by this Section 3.1(g)(v)); or
(h) enter into any discussions, negotiations, agreements or understandings with any Person with respect to any of the foregoing or advise, assist or seek to persuade others to take any action with respect to any of the foregoing. Notwithstanding the foregoing, (a) [the restrictions in Sections 3.1(d), 3.1(e), 3.1(f), 3.1(g)(iii), 3.1(g)(iv), 3.1(g)(v) and 3.1(h) (to the extent it relates to any of the foregoing) shall not apply at any time that (i) the Company fails to comply in all material respects with its obligations under Article 5 hereof, which failure continues unremedied for a period of 10 business days following receipt by the Company of a written notice from the Block Sale Transferee of such failure or (ii) the Block Sale Transferee has relinquished its nomination rights pursuant to Article 5 and all Block Sale Transferee nominated directors have resigned; or (b)]5 in the event that (x) the Board of Directors determines that the Company should engage in any transaction described in Section 3.1(e)(i) or 3.1(e)(ii), the Block Sale Transferee shall be permitted to participate in such Board of Directors’ approved transaction as a shareholder on the same terms and conditions as any other shareholder of the Company, (y) the Board of Directors determines that the Company should solicit from one or more Persons or enter into discussions with one or more Persons regarding, or invites any other Person or group to make a proposal (without similarly inviting the Block Sale Transferee to make a similar proposal) with respect to an acquisition of (i) all or substantially all of the equity securities or assets of the Company or any of its Subsidiaries (by merger, tender offer or otherwise) or (ii) any material assets or businesses of the Company or any of its Subsidiaries, the Block Sale Transferee shall have the right to make a non-public competing proposal to the Board of Directors in compliance with any written procedures generally applicable to Persons making proposals provided by the Company 5 Note to form: enumerated restrictions to be removed if the Block Sale Transferee does not accept the board nomination rights. or the Board of Directors or (z) any third party that is not an Affiliate of the Block Sale Transferee makes a bona fide offer or proposal, with respect to a matter described in Section 3.1(d) or 3.1(e) above (a “Third Party Proposal”), the Block Sale Transferee (A) shall have the right to make a non-public competing proposal to the Board of Directors and may publicly announce that it has made a competing proposal to the Board of Directors so long as such public announcement does not constitute an offer or a solicitation to any recipient thereof and (B) may tender, exchange or otherwise sell or transfer its Company Common Shares (or other equity securities of the Company) to such third party in accordance with the Third Party Proposal; provided, however, that in the case of clauses (y) and (z), the Block Sale Transferee shall be prohibited from participating with, joining in a group with or providing financing to any such third party). [For the avoidance of doubt, any discussions involving the directors nominated by the Block Sale Transferee pursuant to Article 5 hereof (i) at a meeting of the Board of Directors or (ii) with management of the Company, other members of the Board of Directors or any of the Company’s advisors or representatives, in the case of clauses (i) and (ii), while acting in such directors’ capacity as members of the Board of Directors, shall not be deemed to violate any of the provisions of this Article 3.]6Agreement.
Appears in 2 contracts
Samples: Agreement (Starboard Value LP), Shareholder Agreement (Marvell Technology Group LTD)
Standstill Provisions. During the Standstill Period, unless expressly authorized in writing to do so by a majority of the members of the Board of Directors, acting through a committee of directors that qualify as “independent directors” as defined by applicable stock exchange listing rules [(which term, for this purpose, will exclude any directors nominated by the Block Sale Transferee)]1, the Block Sale Transferee shall not, and shall cause its Affiliates not to, directly or indirectly, acting alone or as part of a group:
(a) make, or in any way participate in any solicitation of any proxy [(but without regard to the exclusion set forth in Rule 14a-1(l)(2)(iv) under the Exchange Act from the definition of “solicitation”)]2 to vote any Company Common Shares (or other equity securities of the Company) with respect to any matter (including, without limitation, any contested solicitation for the election of directors with respect to the Company), other than solicitations or acting as a participant in support of all of the Company’s nominees [including, without limitation, the nominees of the Block Sale Transferee pursuant to Article 5]3;
(b) form, join in or in any way participate in a group (for the avoidance of doubt, the Block Sale Transferee shall not be deemed to have formed, joined in or in any way participated in a group with the Company as a result of the Block Sale Transferee’s execution of this Agreement) with respect to the Company Common Shares (or other equity securities of the Company) or deposit any Company Common Shares (or other equity securities of the Company) in a voting trust or similar arrangement or subject any Company Common Shares (or other equity securities of the Company) to any voting agreement or similar arrangement, or grant any proxy with respect to any Company Common Shares (or other equity securities of the Company) (other than to a designated representative of the Company pursuant to a proxy statement of the Company), other than as contemplated by the Governance Agreement or the Stockholders Agreement or the transactions contemplated thereby; 1 Note to form: bracketed language to be removed if Block Sale Transferee does not accept the board nomination rights. 2 Note to form: bracketed language to be removed if Block Sale Transferee does not accept the board nomination rights. 3 Note to form: bracketed language to be removed if Block Sale Transferee does not accept the board nomination rights. Company pursuant to a proxy statement of the Company), other than as contemplated by the Governance Agreement or the Stockholders Agreement or the transactions contemplated thereby;.
(c) seek to call, or to request the calling of, or call a special meeting of the stockholders of the Company, or seek to make, or make, a stockholder proposal (whether pursuant to Rule 14a-8 under the Exchange Act or otherwise) at any meeting of the stockholders of the Company, or make a request for a list of the Company’s stockholders, or[, other than pursuant to the Block Sale Transferee’s nomination rights in accordance with Article 5 of this Agreement,]4 seek election of a representative to the Board of Directors, seek to place a representative on the Board of Directors or seek the removal of any director from the Board of Directors, or otherwise acting alone, or by participating in a group, seek to control or influence the governance or policies of the Company;
(d) effect or seek to effect (including, without limitation, by entering into any discussions, negotiations, agreements or understandings whether or not legally enforceable with any third Person), offer or propose (whether publicly or otherwise) to effect, or cause or participate in, or in any way assist or facilitate any other Person to effect or seek, offer or propose (whether publicly or otherwise) to effect or participate in any acquisition of any Company Common Shares (or other equity securities of the Company) (or Beneficial Ownership thereof) in excess of the Ownership Limitation, except in accordance with Section 2.1; provided, that, for the avoidance of doubt, the Block Sale Transferee is permitted to Transfer to an unaffiliated third party any Company Common Shares (or other equity securities of the Company) Beneficially Owned by the Block Sale Transferee, subject to the provisions of Article 8 hereof, if applicable;
(e) effect or seek to effect (including, without limitation, by entering into any discussions, negotiations, agreements or understandings whether or not legally enforceable with any third Person), offer or propose (whether publicly or otherwise) to effect, or cause or participate in, or in any way assist or facilitate any other Person to effect or seek, offer or propose (whether publicly or otherwise) to effect or participate in (i) any tender offer or exchange offer, merger, acquisition, share exchange or other business combination involving the Company or any of its Subsidiaries, (ii) any recapitalization, restructuring, liquidation, dissolution or other extraordinary transaction with respect to the Company or any of its Subsidiaries or any material portion of its or their businesses, or (iii) any acquisition of any material assets or businesses of the Company or any of its Subsidiaries;
(f) publicly disclose, or cause or, in a material manner, facilitate the public disclosure (including without limitation through the filing by it of any document or report with the SEC or any other governmental agency or any disclosure to any 4 Note to form: bracketed language to be removed if Block Sale Transferee does not accept the board nomination rights. journalist, member of the media or securities analyst) of any intent, purpose, plan or proposal to obtain any waiver, or consent under, or any amendment of, any of the provisions of Section 2.1, this Section 3.1, or Article 4 (except as described in Section 4.1) or bring any action to (i) contest the validity of Section 2.1, this Section 3.1 or Article 4, or (ii) seek a release from the restrictions contained in Section 2.1, this Section 3.1 or Article 4;; 4 Note to form: bracketed language to be removed if Block Sale Transferee does not accept the board nomination rights.
(g) unless required by law, make or issue or cause to be made or issued any public disclosure, announcement or statement (including without limitation the filing of any document or report with the SEC or any other governmental agency or any disclosure to any journalist, member of the media or securities analyst) (i) in support of any solicitation described in paragraph (a) above (other than solicitations by the Company), (ii) in support of any matter described in paragraph (c) above, (iii) concerning any potential matter described in paragraph (d) above; (iv) concerning any potential matter described in paragraph (e) above; or (v) negatively commenting upon the Company’s corporate strategy, business, corporate activities, board of directors or management (for the avoidance of doubt, making any factual statement about the Company’s corporate strategy, business, corporate activities, board of directors or management shall not be prohibited by this Section 3.1(g)(v)); or
(h) enter into any discussions, negotiations, agreements or understandings with any Person with respect to any of the foregoing or advise, assist or seek to persuade others to take any action with respect to any of the foregoing. Notwithstanding the foregoing, (a) [the restrictions in Sections 3.1(d), 3.1(e), 3.1(f), 3.1(g)(iii), 3.1(g)(iv), 3.1(g)(v) and 3.1(h) (to the extent it relates to any of the foregoing) shall not apply at any time that (i) the Company fails to comply in all material respects with its obligations under Article 5 hereof, which failure continues unremedied for a period of 10 business days following receipt by the Company of a written notice from the Block Sale Transferee of such failure or (ii) the Block Sale Transferee has relinquished its nomination rights pursuant to Article 5 and all Block Sale Transferee nominated directors have resigned; or (b)]5 in the event that (x) the Board of Directors determines that the Company should engage in any transaction described in Section 3.1(e)(i) or 3.1(e)(ii), the Block Sale Transferee shall be permitted to participate in such Board of Directors’ approved transaction as a shareholder on the same terms and conditions as any other shareholder of the Company, (y) the Board of Directors determines that the Company should solicit from one or more Persons or enter into discussions with one or more Persons regarding, or invites any other Person or group to make a proposal (without similarly inviting the Block Sale Transferee to make a similar proposal) with respect to an acquisition of (i) all or substantially all of the equity securities or assets of the Company or any of its Subsidiaries (by merger, tender offer or otherwise) or (ii) any material assets or businesses of the Company or any of its Subsidiaries, the Block Sale Transferee shall have the right to make a non-public competing proposal to the Board of Directors in compliance with any written procedures generally applicable to Persons making proposals provided by the Company 5 Note to form: enumerated restrictions to be removed if the Block Sale Transferee does not accept the board nomination rights. or the Board of Directors or (z) any third party that is not an Affiliate of the Block Sale Transferee makes a bona fide offer or proposal, with respect to a matter described in Section 3.1(d) or 3.1(e) above (a “Third Party Proposal”), the Block Sale Transferee (A) shall have the right to make a non-public competing proposal to the Board of Directors and may publicly 5 Note to form: enumerated restrictions to be removed if the Block Sale Transferee does not accept the board nomination rights. announce that it has made a competing proposal to the Board of Directors so long as such public announcement does not constitute an offer or a solicitation to any recipient thereof and (B) may tender, exchange or otherwise sell or transfer its Company Common Shares (or other equity securities of the Company) to such third party in accordance with the Third Party Proposal; provided, however, that in the case of clauses (y) and (z), the Block Sale Transferee shall be prohibited from participating with, joining in a group with or providing financing to any such third party). [For the avoidance of doubt, any discussions involving the directors nominated by the Block Sale Transferee pursuant to Article 5 hereof (i) at a meeting of the Board of Directors or (ii) with management of the Company, other members of the Board of Directors or any of the Company’s advisors or representatives, in the case of clauses (i) and (ii), while acting in such directors’ capacity as members of the Board of Directors, shall not be deemed to violate any of the provisions of this Article 3.]6
Appears in 2 contracts
Samples: Governance Agreement (Expedia, Inc.), Governance Agreement (Expedia, Inc.)
Standstill Provisions. During the Standstill Period, unless expressly authorized in writing to do so by a majority Each of the members Investors hereby severally agrees that neither it nor any Controlled Affiliate of the Board of Directors, acting through a committee of directors that qualify as “independent directors” as defined by applicable stock exchange listing rules [(which term, for this purpose, such Investor will exclude singularly or together with any directors nominated by the Block Sale Transferee)]1, the Block Sale Transferee shall not, and shall cause its Affiliates not to, other Person directly or indirectly, acting alone or as part in each case unless specifically requested to do so in writing in advance by the Board of a groupDirectors of the Company:
(a) makeAcquire or offer, or in any way participate in any solicitation of any proxy [(but without regard to the exclusion set forth in Rule 14a-1(l)(2)(iv) under the Exchange Act from the definition of “solicitation”)]2 to vote any Company Common Shares (or other equity securities of the Company) with respect to any matter (including, without limitation, any contested solicitation for the election of directors with respect to the Company), other than solicitations or acting as a participant in support of all of the Company’s nominees [including, without limitation, the nominees of the Block Sale Transferee pursuant to Article 5]3;
(b) form, join in or in any way participate in a group (for the avoidance of doubt, the Block Sale Transferee shall not be deemed to have formed, joined in or in any way participated in a group with the Company as a result of the Block Sale Transferee’s execution of this Agreement) with respect to the Company Common Shares (or other equity securities of the Company) or deposit any Company Common Shares (or other equity securities of the Company) in a voting trust or similar arrangement or subject any Company Common Shares (or other equity securities of the Company) to any voting agreement or similar arrangement, or grant any proxy with respect to any Company Common Shares (or other equity securities of the Company) (other than to a designated representative of the 1 Note to form: bracketed language to be removed if Block Sale Transferee does not accept the board nomination rights. 2 Note to form: bracketed language to be removed if Block Sale Transferee does not accept the board nomination rights. 3 Note to form: bracketed language to be removed if Block Sale Transferee does not accept the board nomination rights. Company pursuant to a proxy statement of the Company), other than as contemplated by the Governance Agreement or the Stockholders Agreement or the transactions contemplated thereby;
(c) seek to call, or to request the calling of, or call a special meeting of the stockholders of the Company, or seek to make, or make, a stockholder proposal (whether pursuant to Rule 14a-8 under the Exchange Act or otherwise) at any meeting of the stockholders of the Company, or make a request for a list of the Company’s stockholders, or[, other than pursuant proposal or agree to the Block Sale Transferee’s nomination rights in accordance with Article 5 of this Agreement,]4 seek election of a representative to the Board of Directors, seek to place a representative on the Board of Directors or seek the removal of any director from the Board of Directors, or otherwise acting alone, or by participating in a group, seek to control or influence the governance or policies of the Company;
(d) effect or seek to effect (including, without limitation, by entering into any discussions, negotiations, agreements or understandings whether or not legally enforceable with any third Person), offer or propose acquire (whether publicly or otherwise) to effect, or cause or participate in, or in any way assist or facilitate manner, any other Person to effect or seek, offer or propose (whether publicly or otherwise) to effect or participate in any acquisition of any Company Common Shares (or other equity securities material assets of the Company) Company or its subsidiaries or any Voting Stock of the Company or its subsidiaries (or Beneficial Ownership thereof) ), in excess of addition to the Ownership LimitationVoting Stock currently owned by such Investor as set forth in Schedule 1 hereof, except in accordance with Section 2.1; provided, that, for the avoidance of doubt, the Block Sale Transferee is permitted to Transfer to an unaffiliated third party any Company Common Shares (or other equity securities of the Company) Beneficially Owned by the Block Sale Transferee, subject to the provisions of Article 8 hereof, if applicable;
(e) effect or seek to effect (including, without limitation, by entering into any discussions, negotiations, agreements or understandings whether or not legally enforceable with any third Person), offer or propose (whether publicly or otherwise) to effect, or cause or participate in, or in any way assist or facilitate any other Person to effect or seek, offer or propose (whether publicly or otherwise) to effect or participate in (i) not more than an additional 5,784,675 shares of Common Stock which may be acquired after the date of the 2002 Standstill Agreement by all of the Investors, in the aggregate, which number shall be reduced on a share for share basis by any tender offer shares of Common Stock sold or exchange offer, merger, acquisition, share exchange or other business combination involving otherwise disposed of by any Investor and by that number of shares that are acquired by the Company or any of its Subsidiariespursuant to the Option Agreement, (ii) any securities acquired pursuant to a stock split, share dividend, recapitalization, restructuring, liquidation, dissolution reclassification or other extraordinary similar transaction effected by or with respect to the Company or approval of the Board of Directors of the Company; provided that the execution by any Investor of the Stock Purchase Agreements and the performance by such Investor of its Subsidiaries or any material portion of its or their businesses, obligations thereunder shall not violate this subparagraph (a) or (iii) any acquisition shares of Common Stock acquired by any of the Investors or their affiliates upon conversion of any of the Convertible Notes currently held or hereafter acquired by such persons.
(b) Make or in any way propose or participate in any "solicitation" of "proxies" to vote (as such terms are defined in Rule 14a-1 of the Exchange Act), solicit any consent, or communicate with in any material assets respect, or businesses seek to advise or influence any Person (other than the Investors and their Controlled Affiliates) with respect to the solicitation or voting of any Voting Stock of the Company in opposition to any matter that has been recommended by the Board of Directors of the Company or any of its Subsidiaries;
(f) publicly disclose, or cause or, in a material manner, facilitate the public disclosure (including without limitation through the filing by it of any document or report with the SEC or any other governmental agency or any disclosure to any 4 Note to form: bracketed language to be removed if Block Sale Transferee does not accept the board nomination rights. journalist, member of the media or securities analyst) of any intent, purpose, plan or proposal to obtain any waiver, or consent under, or any amendment of, any of the provisions of Section 2.1, this Section 3.1, or Article 4 (except as described in Section 4.1) or bring any action to (i) contest the validity of Section 2.1, this Section 3.1 or Article 4, or (ii) seek a release from the restrictions contained in Section 2.1, this Section 3.1 or Article 4;
(g) unless required by law, make or issue or cause to be made or issued any public disclosure, announcement or statement (including without limitation the filing of any document or report with the SEC or any other governmental agency or any disclosure to any journalist, member of the media or securities analyst) (i) in support of any solicitation described in paragraph (a) above (other than solicitations by the Company), (ii) in support favor of any matter described in paragraph (c) above, (iii) concerning any potential matter described in paragraph (d) above; (iv) concerning any potential matter described in paragraph (e) above; or (v) negatively commenting upon the Company’s corporate strategy, business, corporate activities, board of directors or management (for the avoidance of doubt, making any factual statement about the Company’s corporate strategy, business, corporate activities, board of directors or management shall that has not be prohibited been approved by this Section 3.1(g)(v)); or
(h) enter into any discussions, negotiations, agreements or understandings with any Person with respect to any of the foregoing or advise, assist or seek to persuade others to take any action with respect to any of the foregoing. Notwithstanding the foregoing, (a) [the restrictions in Sections 3.1(d), 3.1(e), 3.1(f), 3.1(g)(iii), 3.1(g)(iv), 3.1(g)(v) and 3.1(h) (to the extent it relates to any of the foregoing) shall not apply at any time that (i) the Company fails to comply in all material respects with its obligations under Article 5 hereof, which failure continues unremedied for a period of 10 business days following receipt by the Company of a written notice from the Block Sale Transferee of such failure or (ii) the Block Sale Transferee has relinquished its nomination rights pursuant to Article 5 and all Block Sale Transferee nominated directors have resigned; or (b)]5 in the event that (x) the Board of Directors determines that the Company should engage in any transaction described in Section 3.1(e)(i) or 3.1(e)(ii), the Block Sale Transferee shall be permitted to participate in such Board of Directors’ approved transaction as a shareholder on the same terms and conditions as any other shareholder of the Company, or become a "participant" (yas defined in Instruction 3 to Item 4 of Rule 14a-101 under the Exchange Act) the Board in any contested election of Directors determines that the Company should solicit from one or more Persons or enter into discussions with one or more Persons regarding, or invites any other Person or group to make a proposal (without similarly inviting the Block Sale Transferee to make a similar proposal) with respect to an acquisition of (i) all or substantially all of the equity securities or assets of the Company or any of its Subsidiaries (by merger, tender offer or otherwise) or (ii) any material assets or businesses of the Company or any of its Subsidiaries, the Block Sale Transferee shall have the right to make a non-public competing proposal to the Board of Directors in compliance with any written procedures generally applicable to Persons making proposals provided by the Company 5 Note to form: enumerated restrictions to be removed if the Block Sale Transferee does not accept the board nomination rights. or the Board of Directors or (z) any third party that is not an Affiliate of the Block Sale Transferee makes a bona fide offer or proposal, with respect to a matter described in Section 3.1(d) or 3.1(e) above (a “Third Party Proposal”), the Block Sale Transferee (A) shall have the right to make a non-public competing proposal to the Board of Directors and may publicly announce that it has made a competing proposal to the Board of Directors so long as such public announcement does not constitute an offer or a solicitation to any recipient thereof and (B) may tender, exchange or otherwise sell or transfer its Company Common Shares (or other equity securities of the Company) to such third party in accordance with the Third Party Proposal; provided, however, that in the case of clauses (y) and (z), the Block Sale Transferee shall be prohibited from participating with, joining in a group with or providing financing to any such third party). [For the avoidance of doubt, any discussions involving the directors nominated by the Block Sale Transferee pursuant to Article 5 hereof (i) at a meeting of the Board of Directors or (ii) with management of the Company, other members of or threaten or propose to do the Board of Directors same or any of publicly announce an intention to do the Company’s advisors or representatives, in the case of clauses (i) and (ii), while acting in such directors’ capacity as members of the Board of Directors, shall not be deemed to violate any of the provisions of this Article 3.]6same.
Appears in 2 contracts
Samples: Standstill Agreement (PRG Schultz International Inc), Standstill Agreement (Blum Capital Partners Lp)
Standstill Provisions. During (a) Starboard agrees that from the date of this Agreement until the earlier of (x) the date that is fifteen (15) business days prior to the deadline for the submission of stockholder nominations for the 2016 Annual Meeting pursuant to the Bylaws and (y) the date that is 100 days prior to the first anniversary of the 2015 Annual Meeting (the “Standstill Period, unless expressly authorized in writing to do so by a majority ”) neither it nor any of the members of the Board of Directors, acting through a committee of directors that qualify as “independent directors” as defined by applicable stock exchange listing rules [(which term, for this purpose, will exclude any directors nominated by the Block Sale Transferee)]1, the Block Sale Transferee shall notits Affiliates or Associates under its control will, and shall it will cause each of its Affiliates and Associates under its control not to, directly or indirectly, acting alone or as part of a groupin any manner:
(ai) makeengage in any solicitation of proxies or consents or become a “participant” in a “solicitation” (as such terms are defined in Regulation 14A under the Exchange Act) of proxies or consents (including, without limitation, any solicitation of consents that seeks to call a special meeting of stockholders), in each case, with respect to securities of the Company;
(ii) form, join or in any way participate in any solicitation “group” (within the meaning of any proxy [(but without regard to the exclusion set forth in Rule 14a-1(l)(2)(ivSection 13(d)(3) under of the Exchange Act from the definition of “solicitation”)]2 to vote any Company Common Shares (or other equity securities of the CompanyAct) with respect to the Common Stock (other than a “group” that includes all or some of the persons identified on Exhibit A, but does not include any matter other entities or persons not identified on Exhibit A as of the date hereof); provided, however, that nothing herein shall limit the ability of an Affiliate of Starboard to join the “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;
(includingiii) deposit any Common Stock in any voting trust or subject any Common Stock to any arrangement or agreement with respect to the voting of any Common Stock, without limitationother than any such voting trust, arrangement or agreement solely among the members of Starboard and otherwise in accordance with this Agreement;
(iv) seek, or encourage any person, to submit nominations in furtherance of a “contested solicitation solicitation” for the election or removal of directors with respect to the Company)Company or seek, encourage or take any other than solicitations action with respect to the election or acting as a participant in support removal of all any directors;
(A) make any proposal for consideration by stockholders at any annual or special meeting of stockholders of the Company’s nominees [including, (B) make any offer or proposal (with or without limitation, the nominees of the Block Sale Transferee pursuant to Article 5]3;
(b) form, join in or in any way participate in a group (for the avoidance of doubt, the Block Sale Transferee shall not be deemed to have formed, joined in or in any way participated in a group with the Company as a result of the Block Sale Transferee’s execution of this Agreementconditions) with respect to the Company Common Shares (any merger, acquisition, recapitalization, restructuring, disposition or other equity securities of business combination involving the Company) or deposit any Company Common Shares (or other equity securities of the Company) in a voting trust or similar arrangement or subject any Company Common Shares (or other equity securities of the Company) to any voting agreement or similar arrangement, or grant encourage, initiate or support any proxy with respect other third party in any such related activity, (C) make any public communication in opposition to any Company Common Shares (acquisition or other equity securities of the Company) (other than to a designated representative of the 1 Note to form: bracketed language to be removed if Block Sale Transferee does not accept the board nomination rights. 2 Note to form: bracketed language to be removed if Block Sale Transferee does not accept the board nomination rights. 3 Note to form: bracketed language to be removed if Block Sale Transferee does not accept the board nomination rights. Company pursuant to a proxy statement of the Company), other than as contemplated disposition activity approved by the Governance Agreement Board or the Stockholders Agreement (D) call or the transactions contemplated thereby;
(c) seek to call, or to request the calling of, or call a special meeting of the stockholders of the Company, or seek to make, or make, a stockholder proposal (whether pursuant to Rule 14a-8 under the Exchange Act or otherwise) at any meeting of the stockholders of the Company, or make a request for a list of the Company’s stockholders, or[, other than pursuant to the Block Sale Transferee’s nomination rights in accordance with Article 5 of this Agreement,]4 seek election of a representative to the Board of Directors, seek to place a representative on the Board of Directors or seek the removal of any director from the Board of Directors, or otherwise acting alone, or by participating in a group, seek to control or influence the governance or policies of the Company;
(dvi) effect seek, alone or in concert with others, representation on the Board, except as specifically permitted in Section 1;
(vii) seek to effect (includingadvise, without limitationencourage, by entering into support or influence any discussions, negotiations, agreements person with respect to the voting or understandings whether or not legally enforceable with any third Person), offer or propose (whether publicly or otherwise) to effect, or cause or participate in, or in any way assist or facilitate any other Person to effect or seek, offer or propose (whether publicly or otherwise) to effect or participate in any acquisition disposition of any Company Common Shares (or other equity securities of the Company) (Company at any annual or Beneficial Ownership thereof) in excess special meeting of the Ownership Limitationstockholders, except in accordance with Section 2.11;
(viii) make any request or submit any proposal to amend the terms of this Agreement other than through non-public communications with the Company that would not be reasonably determined to trigger public disclosure obligations for any Party; providedor
(ix) disclose any intention, thatplan or arrangement inconsistent with any provision of this Section 2.
(b) Except as expressly provided in Section 1 or Section 2(a), for each member of Starboard shall be entitled to: (i) vote their shares on any other proposal duly brought before the avoidance 2015 Annual Meeting or otherwise vote as each member of doubtStarboard determines in its sole discretion; and (ii) disclose, the Block Sale Transferee is permitted publicly or otherwise, how it intends to Transfer vote or act with respect to an unaffiliated third party any Company Common Shares (or other equity securities of the Company) Beneficially Owned , any stockholder proposal or other matter to be voted on by the Block Sale Transferee, subject to the provisions of Article 8 hereof, if applicable;
(e) effect or seek to effect (including, without limitation, by entering into any discussions, negotiations, agreements or understandings whether or not legally enforceable with any third Person), offer or propose (whether publicly or otherwise) to effect, or cause or participate in, or in any way assist or facilitate any other Person to effect or seek, offer or propose (whether publicly or otherwise) to effect or participate in (i) any tender offer or exchange offer, merger, acquisition, share exchange or other business combination involving the Company or any of its Subsidiaries, (ii) any recapitalization, restructuring, liquidation, dissolution or other extraordinary transaction with respect to the Company or any of its Subsidiaries or any material portion of its or their businesses, or (iii) any acquisition of any material assets or businesses stockholders of the Company or any of its Subsidiaries;
(f) publicly disclose, or cause or, in a material manner, facilitate and the public disclosure (including without limitation through the filing by it of any document or report with the SEC or any other governmental agency or any disclosure to any 4 Note to form: bracketed language to be removed if Block Sale Transferee does not accept the board nomination rights. journalist, member of the media or securities analyst) of any intent, purpose, plan or proposal to obtain any waiver, or consent under, or any amendment of, any of the provisions of Section 2.1, this Section 3.1, or Article 4 (except as described in Section 4.1) or bring any action to (i) contest the validity of Section 2.1, this Section 3.1 or Article 4, or (ii) seek a release from the restrictions contained in Section 2.1, this Section 3.1 or Article 4;
(g) unless required by law, make or issue or cause to be made or issued any public disclosure, announcement or statement (including without limitation the filing of any document or report with the SEC or any other governmental agency or any disclosure to any journalist, member of the media or securities analyst) (i) in support of any solicitation described in paragraph (a) above (other than solicitations by the Company), (ii) in support of any matter described in paragraph (c) above, (iii) concerning any potential matter described in paragraph (d) above; (iv) concerning any potential matter described in paragraph (e) above; or (v) negatively commenting upon the Company’s corporate strategy, business, corporate activities, board of directors or management (for the avoidance of doubt, making any factual statement about the Company’s corporate strategy, business, corporate activities, board of directors or management shall not be prohibited by this Section 3.1(g)(v)); or
(h) enter into any discussions, negotiations, agreements or understandings with any Person with respect to any of the foregoing or advise, assist or seek to persuade others to take any action with respect to any of the foregoing. Notwithstanding the foregoing, (a) [the restrictions in Sections 3.1(d), 3.1(e), 3.1(f), 3.1(g)(iii), 3.1(g)(iv), 3.1(g)(v) and 3.1(h) (to the extent it relates to any of the foregoing) shall not apply at any time that (i) the Company fails to comply in all material respects with its obligations under Article 5 hereof, which failure continues unremedied for a period of 10 business days following receipt by the Company of a written notice from the Block Sale Transferee of such failure or (ii) the Block Sale Transferee has relinquished its nomination rights pursuant to Article 5 and all Block Sale Transferee nominated directors have resigned; or (b)]5 in the event that (x) the Board of Directors determines that the Company should engage in any transaction described in Section 3.1(e)(i) or 3.1(e)(ii), the Block Sale Transferee shall be permitted to participate in such Board of Directors’ approved transaction as a shareholder on the same terms and conditions as any other shareholder of the Company, (y) the Board of Directors determines that the Company should solicit from one or more Persons or enter into discussions with one or more Persons regarding, or invites any other Person or group to make a proposal (without similarly inviting the Block Sale Transferee to make a similar proposal) with respect to an acquisition of (i) all or substantially all of the equity securities or assets of the Company or any of its Subsidiaries (by merger, tender offer or otherwise) or (ii) any material assets or businesses of the Company or any of its Subsidiaries, the Block Sale Transferee shall have the right to make a non-public competing proposal to the Board of Directors in compliance with any written procedures generally applicable to Persons making proposals provided by the Company 5 Note to form: enumerated restrictions to be removed if the Block Sale Transferee does not accept the board nomination rights. or the Board of Directors or (z) any third party that is not an Affiliate of the Block Sale Transferee makes a bona fide offer or proposal, with respect to a matter described in Section 3.1(d) or 3.1(e) above (a “Third Party Proposal”), the Block Sale Transferee (A) shall have the right to make a non-public competing proposal to the Board of Directors and may publicly announce that it has made a competing proposal to the Board of Directors so long as such public announcement does not constitute an offer or a solicitation to any recipient thereof and (B) may tender, exchange or otherwise sell or transfer its Company Common Shares (or other equity securities of the Company) to such third party in accordance with the Third Party Proposal; provided, however, that in the case of clauses (y) and (z), the Block Sale Transferee shall be prohibited from participating with, joining in a group with or providing financing to any such third party). [For the avoidance of doubt, any discussions involving the directors nominated by the Block Sale Transferee pursuant to Article 5 hereof (i) at a meeting of the Board of Directors or (ii) with management of the Company, other members of the Board of Directors or any of the Company’s advisors or representatives, in the case of clauses (i) and (ii), while acting in such directors’ capacity as members of the Board of Directors, shall not be deemed to violate any of the provisions of this Article 3.]6reasons therefore.
Appears in 2 contracts
Samples: Agreement (Starboard Value LP), Agreement (Insperity, Inc.)
Standstill Provisions. During (a) Red Alder agrees that, from the date of this Agreement until (x) with respect to each of the following solely as it relates to the election or removal of directors, the date that is fifteen (15) business days prior to the deadline for the submission of shareholder nominations of director candidates for election to the Board at the Company’s 2016 annual meeting of shareholders (including any adjournment or postponement thereof, the “2016 Annual Meeting”) (the “Director Standstill Period”), unless expressly authorized in writing and (y) with respect to do so by a majority each of the members following as it relates to any matter other than the election or removal of the Board of Directors, acting through a committee of directors that qualify as “independent directors” as defined by applicable stock exchange listing rules [(which term, for this purpose, will exclude any directors nominated by the Block Sale Transferee)]1, the Block Sale Transferee shall notdate that is one year after the date of this Agreement (the “Standstill Period”), neither it nor any of its Affiliates will, and shall it will cause each of its Affiliates not to, directly or indirectly, acting alone or as part of a groupin any manner:
(ai) makesolicit, make or engage in any solicitation of proxies, or consents or other authority to vote any Common Stock or in any way become a “participant” in a “solicitation” (as such terms are defined in Regulation 14A under the Exchange Act) of proxies or consents (including, without limitation, any solicitation of consents that seeks to call a special meeting of shareholders), in each case, with respect to securities of the Company, except that Red Alder and its Affiliates may engage in the foregoing in connection with the election of the Shareholder Nominees to the Board;
(ii) form, join or in any way participate in any solicitation “group” (within the meaning of any proxy [(but without regard to the exclusion set forth in Rule 14a-1(l)(2)(ivSection 13(d)(3) under of the Exchange Act from the definition of “solicitation”)]2 to vote any Company Common Shares (or other equity securities of the CompanyAct) with respect to any matter the Common Stock or other securities of the Company (including, without limitation, any contested solicitation for the election of directors with respect to the Company), other than solicitations or acting the “group” identified on Exhibit A); provided, however, that nothing herein shall limit the ability of an Affiliate of Red Alder to join the “group” following the execution of this Agreement, so long as a participant in support any such Affiliate agrees to be bound by the terms of all of the Company’s nominees [including, without limitation, the nominees of the Block Sale Transferee pursuant to Article 5]3this Agreement;
(biii) form, join in or deposit any Common Stock in any way participate in a group voting trust or subject any Common Stock to any arrangement or agreement (for the avoidance of doubt, the Block Sale Transferee shall not be deemed to have formed, joined in or in any way participated in a group with the Company as a result of the Block Sale Transferee’s execution of other than this Agreement) with respect to the Company voting of any Common Shares Stock, other than any such voting trust, arrangement or agreement solely among Red Alder and its Affiliates;
(iv) seek, encourage any person to submit nominations in furtherance of or other equity securities of become a participant in any “contested solicitation” against the Company) , including without limitation relating to the election or deposit any Company Common Shares (or other equity securities removal of the Company) in a voting trust or similar arrangement or subject any Company Common Shares (or other equity securities of the Company) to any voting agreement or similar arrangement, or grant any proxy directors with respect to the Company or seek, encourage or take any Company Common Shares (other action with respect to the election or other equity securities removal of any directors of the Company) Company (other than to the Shareholder Nominees); provided, however, that nothing in this Agreement shall prevent Red Alder and its Affiliates from taking actions in furtherance of identifying and/or nominating director candidates a designated representative reasonable time in advance of the 1 Note to form: bracketed language to be removed if Block Sale Transferee does 2016 Annual Meeting so long as such actions do not accept the board nomination rights. 2 Note to form: bracketed language to be removed if Block Sale Transferee does not accept the board nomination rights. 3 Note to form: bracketed language to be removed if Block Sale Transferee does not accept the board nomination rights. Company pursuant to create a proxy statement of the Company), other than as contemplated by the Governance Agreement or the Stockholders Agreement or the transactions contemplated therebypublic disclosure obligation for Red Alder;
(cv) seek become a participant in any contested solicitation against the Company, including without limitation relating to callthe removal or the election of directors proposed by the Company;
(vi) (A) initiate, make any proposal for consideration by shareholders or to request the calling of, otherwise solicit shares for approval of a shareholder proposal at any annual or call a special meeting of the stockholders shareholders of the Company, or seek to make, (B) make any offer or make, a stockholder proposal (whether pursuant with or without conditions) with respect to Rule 14a-8 under the Exchange Act a merger, acquisition, recapitalization, restructuring, disposition or otherwise) at any meeting of the stockholders of the Company, or make a request for a list of the Company’s stockholders, or[, other than pursuant to the Block Sale Transferee’s nomination rights in accordance with Article 5 of this Agreement,]4 seek election of a representative to the Board of Directors, seek to place a representative on the Board of Directors or seek the removal of any director from the Board of Directors, or otherwise acting alone, or by participating in a group, seek to control or influence the governance or policies of business combination involving Red Alder and the Company;
(dvii) cause to be voted any Common Stock that Red Alder has the right to vote (or direct the vote) in a manner other than in accordance with the recommendation of the Board with respect to (A) the election or removal of directors; and (B) shareholder proposals;
(viii) seek, alone or in concert with others, representation on the Board, except as specifically contemplated in Section 1;
(ix) seek, alone or in concert with others, to increase their aggregate ownership of the Common Stock beyond 20% of all shares outstanding at the time of this Agreement (as adjusted for any stock dividend, stock split, stock combination, reclassification or other similar transaction);
(x) either directly or indirectly for itself or its Affiliates, or in conjunction with any other person or entity in which it proposes to be either a principal, partner or financing source, effect or seek to effect (including, without limitation, by entering into any discussions, negotiations, agreements or understandings whether or not legally enforceable with any third Person)seek, offer or propose (whether publicly or otherwise) to effect, or cause or participate in, or in any way knowingly support, assist or facilitate any other Person person to effect or seek, offer or propose (whether publicly or otherwise) to effect or participate in any acquisition of any Company Common Shares (or other equity securities of the Company) (or Beneficial Ownership thereof) in excess of the Ownership Limitation, except in accordance with Section 2.1; provided, that, for the avoidance of doubt, the Block Sale Transferee is permitted to Transfer to an unaffiliated third party any Company Common Shares (or other equity securities of the Company) Beneficially Owned by the Block Sale Transferee, subject to the provisions of Article 8 hereof, if applicable;
(e) effect or seek to effect (including, without limitation, by entering into any discussions, negotiations, agreements or understandings whether or not legally enforceable with any third Person), offer or propose (whether publicly or otherwise) to effect, or cause or participate in, or in any way assist or facilitate any other Person to effect or seek, offer or propose (whether publicly or otherwise) to effect or participate in (iA) any tender offer or exchange offer, merger, acquisition, share exchange acquisition or other business combination involving the Company or any of its Subsidiaries, subsidiaries or Affiliates; (iiB) any recapitalization, form of business combination or acquisition or other transaction relating to a material amount of assets or securities of the Company or any of its subsidiaries or Affiliates; or (C) any form of restructuring, liquidation, dissolution recapitalization or other extraordinary similar transaction with respect to the Company or any of its Subsidiaries subsidiaries or Affiliates; provided, however, the restrictions contained in this subsection (x) shall not be applicable to any material portion such transaction or process recommended or approved by a majority of its the Board;
(xi) (A) enter into any arrangements, understanding or their businessesagreements relating to the Company (whether written or oral) with, or advise, finance or knowingly assist or encourage, any other person in connection with any of the foregoing, or (iiiB) make any acquisition of investment in or enter into any material assets or businesses of arrangement relating to the Company with any other person that Red Alder knows or any of its Subsidiaries;
(f) publicly disclosehas reason to know engages, or cause oroffers or proposes to engage, in a material mannerin, facilitate the public disclosure (including without limitation through the filing by it of any document and which investment or report with the SEC or any other governmental agency or any disclosure to any 4 Note to form: bracketed language to be removed if Block Sale Transferee does not accept the board nomination rights. journalist, member of the media or securities analyst) of any intent, purpose, plan or proposal to obtain any waiver, or consent under, or any amendment ofarrangement relates to, any of the provisions prohibited activities or transactions referenced in the foregoing paragraphs of Section 2.1, this Section 3.1, or Article 4 (except as described in Section 4.1) or bring any action to (i) contest the validity of Section 2.1, this Section 3.1 or Article 4, or (ii) seek a release from the restrictions contained in Section 2.1, this Section 3.1 or Article 42(a);
(gxii) unless required by law, make any request or issue or cause submit any proposal to be made or issued any amend the terms of this Agreement other than through non-public disclosure, announcement or statement (including without limitation the filing of any document or report communications with the SEC or any other governmental agency or any disclosure to any journalist, member of the media or securities analyst) (i) in support of any solicitation described in paragraph (a) above (other than solicitations by the Company), (ii) in support of any matter described in paragraph (c) above, (iii) concerning any potential matter described in paragraph (d) above; (iv) concerning any potential matter described in paragraph (e) above; or (v) negatively commenting upon the Company’s corporate strategy, business, corporate activities, board of directors or management (for the avoidance of doubt, making any factual statement about the Company’s corporate strategy, business, corporate activities, board of directors or management shall Company that would not be prohibited by this Section 3.1(g)(v))reasonably determined to trigger public disclosure obligations for any Party; or
(hxiii) enter into any discussions, negotiations, agreements take or understandings with any Person with respect to any of the foregoing intentionally cause or advise, assist or seek to persuade actively induce others to take any action directly inconsistent with respect to any of the foregoing. Notwithstanding the foregoing, (a) [the restrictions in Sections 3.1(d), 3.1(e), 3.1(f), 3.1(g)(iii), 3.1(g)(iv), 3.1(g)(v) and 3.1(h) (to the extent it relates to any of the foregoing) shall not apply at any time that (i) the Company fails to comply in all material respects with its obligations under Article 5 hereof, which failure continues unremedied for a period of 10 business days following receipt by the Company of a written notice from the Block Sale Transferee of such failure or (ii) the Block Sale Transferee has relinquished its nomination rights pursuant to Article 5 and all Block Sale Transferee nominated directors have resigned; or (b)]5 in the event that (x) the Board of Directors determines that the Company should engage in any transaction described in Section 3.1(e)(i) or 3.1(e)(ii), the Block Sale Transferee shall be permitted to participate in such Board of Directors’ approved transaction as a shareholder on the same terms and conditions as any other shareholder of the Company, (y) the Board of Directors determines that the Company should solicit from one or more Persons or enter into discussions with one or more Persons regarding, or invites any other Person or group to make a proposal (without similarly inviting the Block Sale Transferee to make a similar proposal) with respect to an acquisition of (i) all or substantially all of the equity securities or assets of the Company or any of its Subsidiaries (by merger, tender offer or otherwise) or (ii) any material assets or businesses of the Company or any of its Subsidiaries, the Block Sale Transferee shall have the right to make a non-public competing proposal to the Board of Directors in compliance with any written procedures generally applicable to Persons making proposals provided by the Company 5 Note to form: enumerated restrictions to be removed if the Block Sale Transferee does not accept the board nomination rights. or the Board of Directors or (z) any third party that is not an Affiliate of the Block Sale Transferee makes a bona fide offer or proposal, with respect to a matter described in Section 3.1(d) or 3.1(e) above (a “Third Party Proposal”), the Block Sale Transferee (A) shall have the right to make a non-public competing proposal to the Board of Directors and may publicly announce that it has made a competing proposal to the Board of Directors so long as such public announcement does not constitute an offer or a solicitation to any recipient thereof and (B) may tender, exchange or otherwise sell or transfer its Company Common Shares (or other equity securities of the Company) to such third party in accordance with the Third Party Proposal; provided, however, that in the case of clauses (y) and (z), the Block Sale Transferee shall be prohibited from participating with, joining in a group with or providing financing to any such third party). [For the avoidance of doubt, any discussions involving the directors nominated by the Block Sale Transferee pursuant to Article 5 hereof (i) at a meeting of the Board of Directors or (ii) with management of the Company, other members of the Board of Directors or any of the Company’s advisors or representatives, in the case of clauses (i) and (ii), while acting in such directors’ capacity as members of the Board of Directors, shall not be deemed to violate any of the provisions of this Article 3.]6.
Appears in 2 contracts
Samples: Agreement (Red Alder GP, LLC), Agreement (Speed Commerce, Inc.)
Standstill Provisions. During (a) FPA agrees that from the period from the date of execution of this Agreement until the earlier of (x) the date that is fifteen (15) business days prior to the deadline for the submission of stockholder nominations for the 2020 annual meeting of stockholders of the Company (the “2020 Annual Meeting”) pursuant to the Bylaws and (y) the date that is 100 days prior to the first anniversary of the 2019 Annual Meeting (the “Standstill Period”), unless expressly authorized in writing to do so by a majority neither it nor any of the members of the Board of Directorsits Affiliates, acting through a committee of directors that qualify as “independent directors” as defined by applicable stock exchange listing rules [(which termor Associates under its control, for this purpose, will exclude any directors nominated by the Block Sale Transferee)]1, the Block Sale Transferee shall notwill, and shall it will cause each of its Affiliates Affiliates, and Associates under its control, not to, directly or indirectly, acting in any manner, alone or as part of a groupin concert with others:
(ai) makepurchase or cause to be purchased or otherwise acquire or agree to acquire beneficial ownership of any Common Stock or other securities issued by the Company, or any securities convertible into or exchangeable for Common Stock, such that FPA, together with its Affiliates and Associates (as defined in any way participate Section 2(a)) would, in the aggregate, beneficially own a number of shares in excess of 15% of the then outstanding shares of Common Stock prior to the earlier of (1) the conclusion of the 2018 Annual Meeting and (2) February 28, 2018, and 20% of the then outstanding shares of Common Stock thereafter;
(ii) engage in any solicitation of any proxy [proxies or consents or become a “participant” in a “solicitation” (but without regard to the exclusion set forth as such terms are defined in Rule 14a-1(l)(2)(iv) Regulation 14A under the Exchange Act from the definition Act) of “solicitation”)]2 to vote any Company Common Shares (proxies or other equity securities of the Company) with respect to any matter consents (including, without limitation, any contested solicitation for the election of directors consents that seeks to call a special meeting of stockholders), in each case, with respect to the Company), other than solicitations or acting as a participant in support of all securities of the Company’s nominees [including, without limitation, the nominees of the Block Sale Transferee pursuant to Article 5]3;
(biii) form, join in or in any way participate in a group partnership, syndicate or other group, including, without limitation, any “group” (for within the avoidance meaning of doubt, the Block Sale Transferee shall not be deemed to have formed, joined in or in any way participated in a group with the Company as a result Section 13(d)(3) of the Block Sale Transferee’s execution of this AgreementExchange Act) with respect to the Company Common Shares Stock (other than a “group” that includes all or other equity securities some of the Companypersons identified on Exhibit A, but does not include any other entities or persons not identified on Exhibit A as of the date hereof); provided, however, that nothing herein shall limit the ability of an Affiliate of FPA to join the “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;
(iv) or deposit any Company Common Shares (or other equity securities of the Company) Stock in a any voting trust or similar subject any Common Stock to any arrangement or subject agreement with respect to the voting of any Company Common Shares Stock, other than any such voting trust, arrangement or agreement solely among the members of FPA and otherwise in accordance with this Agreement;
(or other equity securities of the Companyv) to any voting agreement or similar arrangementseek, or grant encourage any proxy person, to submit nominations in furtherance of a “contested solicitation” for the election or removal of directors with respect to the Company or seek, encourage or take any other action with respect to the election or removal of any directors (except as provided for in Section 1);
(vi) except as otherwise provided for in this Agreement: (A) nominate or publicly recommend for nomination any person for election to the Board of Directors at annual or special meetings of stockholders or otherwise (“Stockholder Meetings”), directly or indirectly, (B) submit any proposal for consideration at, or bring any other business before, Stockholder Meetings, directly or indirectly; (C) publicly make any offer or proposal (with or without conditions) with respect to any Company Common Shares (or other equity securities of the Company) (other than to a designated representative of the 1 Note to form: bracketed language to be removed if Block Sale Transferee does not accept the board nomination rights. 2 Note to form: bracketed language to be removed if Block Sale Transferee does not accept the board nomination rights. 3 Note to form: bracketed language to be removed if Block Sale Transferee does not accept the board nomination rights. Company pursuant to a proxy statement of the Company), other than as contemplated by the Governance Agreement or the Stockholders Agreement or the transactions contemplated thereby;
(c) seek to call, or to request the calling of, or call a special meeting of the stockholders of the Company, or seek to make, or make, a stockholder proposal (whether pursuant to Rule 14a-8 under the Exchange Act or otherwise) at any meeting of the stockholders of the Company, or make a request for a list of the Company’s stockholders, or[, other than pursuant to the Block Sale Transferee’s nomination rights in accordance with Article 5 of this Agreement,]4 seek election of a representative to the Board of Directors, seek to place a representative on the Board of Directors or seek the removal of any director from the Board of Directors, or otherwise acting alone, or by participating in a group, seek to control or influence the governance or policies of the Company;
(d) effect or seek to effect (including, without limitation, by entering into any discussions, negotiations, agreements or understandings whether or not legally enforceable with any third Person), offer or propose (whether publicly or otherwise) to effect, or cause or participate in, or in any way assist or facilitate any other Person to effect or seek, offer or propose (whether publicly or otherwise) to effect or participate in any acquisition of any Company Common Shares (or other equity securities of the Company) (or Beneficial Ownership thereof) in excess of the Ownership Limitation, except in accordance with Section 2.1; provided, that, for the avoidance of doubt, the Block Sale Transferee is permitted to Transfer to an unaffiliated third party any Company Common Shares (or other equity securities of the Company) Beneficially Owned by the Block Sale Transferee, subject to the provisions of Article 8 hereof, if applicable;
(e) effect or seek to effect (including, without limitation, by entering into any discussions, negotiations, agreements or understandings whether or not legally enforceable with any third Person), offer or propose (whether publicly or otherwise) to effect, or cause or participate in, or in any way assist or facilitate any other Person to effect or seek, offer or propose (whether publicly or otherwise) to effect or participate in (i) any tender offer or exchange offer, merger, acquisition, share exchange amalgamation, recapitalization, restructuring, disposition, distribution, spin-off, asset sale, joint venture or other business combination involving the Company or any of its Subsidiaries, (ii) any recapitalization, restructuring, liquidation, dissolution or other extraordinary transaction with respect to the Company or any of its Subsidiaries or any material portion of its or their businessesan “Extraordinary Transaction”), or (iii) any acquisition of any material assets encourage, initiate or businesses of the Company or any of its Subsidiaries;
(f) publicly disclose, or cause or, in a material manner, facilitate the public disclosure (including without limitation through the filing by it of any document or report with the SEC or support any other governmental agency or any disclosure to any 4 Note to form: bracketed language to be removed if Block Sale Transferee does not accept the board nomination rights. journalist, member of the media or securities analyst) of any intent, purpose, plan or proposal to obtain any waiver, or consent under, or any amendment of, any of the provisions of Section 2.1, this Section 3.1, or Article 4 (except as described in Section 4.1) or bring any action to (i) contest the validity of Section 2.1, this Section 3.1 or Article 4, or (ii) seek a release from the restrictions contained in Section 2.1, this Section 3.1 or Article 4;
(g) unless required by law, make or issue or cause to be made or issued any public disclosure, announcement or statement (including without limitation the filing of any document or report with the SEC or any other governmental agency or any disclosure to any journalist, member of the media or securities analyst) (i) in support of any solicitation described in paragraph (a) above (other than solicitations by the Company), (ii) in support of any matter described in paragraph (c) above, (iii) concerning any potential matter described in paragraph (d) above; (iv) concerning any potential matter described in paragraph (e) above; or (v) negatively commenting upon the Company’s corporate strategy, business, corporate activities, board of directors or management (for the avoidance of doubt, making any factual statement about the Company’s corporate strategy, business, corporate activities, board of directors or management shall not be prohibited by this Section 3.1(g)(v)); or
(h) enter into any discussions, negotiations, agreements or understandings with any Person third party with respect to any of the foregoing foregoing, (D) make any public communication in opposition to any Extraordinary Transaction approved by the Board or advise, assist (E) call or seek to persuade others call a special meeting of stockholders;
(vii) seek to take advise, encourage, support or influence any action person with respect to the voting or disposition of any securities of the Company at any annual or special meeting of stockholders, except in accordance with Section 2;
(viii) make any request or submit any proposal to amend the terms of this Agreement other than through non-public communications with the Company that would not be reasonably determined to trigger public disclosure obligations for any Party;
(ix) disclose any intention, plan or arrangement inconsistent with any provision of this Section 3;
(x) make any public statement other than in support of the recommendations of the Board regarding how FPA intends to vote or instructing other stockholders how to vote;
(xi) make any public disclosure regarding any intent or proposal with respect to the Board, the Company, its management or policies, any of its securities or assets or agreement that is inconsistent with the provisions of this Agreement;
(xii) make a request for the stockholder list or other Company books and records, apart from the information the Company provides to other investors in the normal course; or
(xiii) advise or assist a third party with respect to any of the foregoing. Notwithstanding For the foregoingavoidance of doubt, (aother than communications or disclosures expressly prohibited under Sections 3(a) [or 6, FPA may engage in non-public communications with the restrictions in Sections 3.1(d)Company regarding general operational and corporate governance matters, 3.1(e), 3.1(f), 3.1(g)(iii), 3.1(g)(iv), 3.1(g)(v) which may include referring and 3.1(h) (recommending additional director candidates to the extent it relates Board for its consideration. Except as expressly provided in Section 2 or 3, each member of FPA shall be entitled to vote their shares on any other proposal duly brought before the 2017 Annual Meeting, 2018 Annual Meeting or 2019 Annual Meeting or otherwise vote as each member of the foregoingFPA determines in its sole discretion.
(b) shall not apply at any time that (i) the Company fails to comply in all material respects with its obligations under Article 5 hereof, which failure continues unremedied for a period of 10 business days following receipt by the Company of a written notice from the Block Sale Transferee of such failure or (ii) the Block Sale Transferee has relinquished its nomination rights pursuant to Article 5 and all Block Sale Transferee nominated directors have resigned; or (b)]5 in In the event that (x) the Board FPA’s beneficial ownership of Directors determines that the Company should engage in any transaction described in Section 3.1(e)(i) shares of Common Stock or 3.1(e)(ii), the Block Sale Transferee shall be permitted to participate in such Board of Directors’ approved transaction as a shareholder on the same terms and conditions as any other shareholder securities of the Company, (y) or any securities convertible into or exchangeable for Common Stock, exceeds 15% of the Board outstanding shares of Directors determines that the Company should solicit from Common Stock, then FPA will not, and FPA will cause each of its Affiliates, and Associates under its control, not to, directly or indirectly, in any manner, alone or in concert with others, in one transaction or more Persons any series of transactions, sell, dispose of, transfer, grant any option or enter into discussions rights with one or more Persons regardingrespect to, or invites any other Person otherwise transfer voting or group to make a proposal (without similarly inviting the Block Sale Transferee to make a similar proposal) investment power or economic interest with respect to, any Common Stock or any such other securities in a privately negotiated sale, block trade or otherwise to an acquisition any person or “group” (within the meaning of Section 13(d)(3) of the Exchange Act) (i) all other than a “group” consisting solely of some or substantially all of the equity securities persons identified on Exhibit A and their Affiliates and Associates, whether now or assets hereinafter existing) if, as a result of the Company such transaction or any of its Subsidiaries transactions, such person or group (by mergerto FPA’s actual knowledge, tender offer or otherwise) or (ii) any material assets or businesses of the Company or any of its Subsidiaries, the Block Sale Transferee shall have the right to make a non-public competing proposal to the Board of Directors in compliance with any written procedures generally applicable to Persons making proposals provided by the Company 5 Note to form: enumerated restrictions to be removed if the Block Sale Transferee does not accept the board nomination rights. or the Board of Directors or (z) any third party that is not an Affiliate of the Block Sale Transferee makes a bona fide offer or proposaland, with respect to a matter described in Section 3.1(dprivately negotiated sales or block trades directly with the counterparty, after due inquiry) would beneficially own 5% or 3.1(e) above (a “Third Party Proposal”), the Block Sale Transferee (A) shall have the right to make a non-public competing proposal to the Board of Directors and may publicly announce that it has made a competing proposal to the Board of Directors so long as such public announcement does not constitute an offer or a solicitation to any recipient thereof and (B) may tender, exchange or otherwise sell or transfer its Company Common Shares (or other equity securities more of the Company) ’s Common Stock as of the close of business on the third day following such purchase (as determined based on the publicly available filings relating to such third party in accordance the Company with the Third Party ProposalSEC); provided, however, that in the case of clauses (y) and (z), the Block Sale Transferee foregoing shall be prohibited from participating with, joining in a group with or providing financing not apply to any such third party). [For the avoidance of doubt, any discussions involving the directors nominated by the Block Sale Transferee pursuant to Article 5 hereof (i) at unsolicited sales by FPA or its Affiliates or Associates through a meeting broker or financial intermediary on a stock exchange that are not to a specifically identified ultimate purchaser or through so called “dark pools” that are not arranged by FPA or any of its Affiliates or Associates or with FPA’s or its Affiliates’ or Associates’ knowledge or the knowledge of any such broker or financial intermediary of the Board of Directors ultimate purchaser or (ii) with management participation by FPA or any of its Affiliates or Associates in any tender offer approved by the Board for the Company’s Common Stock or the exchange of its shares for the merger in a merger of the Company, other members of the Board of Directors or any of the Company’s advisors or representatives, in the case of clauses (i) and (ii), while acting in such directors’ capacity as members of the Board of Directors, shall not be deemed to violate any of the provisions of this Article 3.]6.
Appears in 2 contracts
Samples: Shareholder Agreement (First Pacific Advisors, LLC), Shareholder Agreement (Esterline Technologies Corp)
Standstill Provisions. During (a) Viex agrees that from the date of this Agreement until the date that is ten (10) business days prior to the deadline for the submission of stockholder proposals for the 2018 Annual Meeting pursuant to the Bylaws (the “Standstill Period”), unless expressly authorized in writing to do so by a majority neither it nor any of the members of the Board of Directors, acting through a committee of directors that qualify as “independent directors” as defined by applicable stock exchange listing rules [(which term, for this purpose, will exclude any directors nominated by the Block Sale Transferee)]1, the Block Sale Transferee shall notits Affiliates or Associates under its control will, and shall it will cause each of its Affiliates and Associates under its control not to, directly or indirectly, acting alone or as part of a groupin any manner:
(ai) makepurchase or cause to be purchased or otherwise acquire or agree to acquire beneficial ownership of any Common Stock or other securities issued by the Company, or any securities convertible into or exchangeable for Common Stock, such that Viex, together with its Affiliates and Associates (as defined in Section 3(a)) would, in the aggregate, beneficially own a number of shares in excess of 10% of the then outstanding shares of Common Stock;
(ii) engage in any solicitation of proxies or consents or become a “participant” in a “solicitation” (as such terms are defined in Regulation 14A under the Exchange Act) of proxies or consents (including, without limitation, any solicitation of consents that seeks to call a special meeting of stockholders), in each case, with respect to securities of the Company;
(iii) form, join or in any way participate in any solicitation “group” (within the meaning of any proxy [(but without regard to the exclusion set forth in Rule 14a-1(l)(2)(ivSection 13(d)(3) under of the Exchange Act from the definition of “solicitation”)]2 to vote any Company Common Shares (or other equity securities of the CompanyAct) with respect to the Common Stock (other than a “group” that includes all or some of the persons identified on Exhibit A, but does not include any matter other entities or persons not identified on Exhibit A as of the date hereof); provided, however, that nothing herein shall limit the ability of an Affiliate of Viex to join the “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;
(includingiv) deposit any Common Stock in any voting trust or subject any Common Stock to any arrangement or agreement with respect to the voting of any Common Stock, without limitationother than any such voting trust, arrangement or agreement solely among the members of Viex and otherwise in accordance with this Agreement;
(v) seek, or encourage any person, to submit nominations in furtherance of a “contested solicitation solicitation” for the election or removal of directors with respect to the Company)Company or seek, encourage or take any other than solicitations or acting as a participant in support of all of the Company’s nominees [including, without limitation, the nominees of the Block Sale Transferee pursuant to Article 5]3;
(b) form, join in or in any way participate in a group (for the avoidance of doubt, the Block Sale Transferee shall not be deemed to have formed, joined in or in any way participated in a group with the Company as a result of the Block Sale Transferee’s execution of this Agreement) action with respect to the Company Common Shares (election or other equity securities removal of the Company) or deposit any Company Common Shares (or other equity securities of the Company) in a voting trust or similar arrangement or subject any Company Common Shares (or other equity securities of the Company) to any voting agreement or similar arrangement, or grant any proxy with respect to any Company Common Shares (or other equity securities of the Company) (other than to a designated representative of the 1 Note to form: bracketed language to be removed if Block Sale Transferee does not accept the board nomination rights. 2 Note to form: bracketed language to be removed if Block Sale Transferee does not accept the board nomination rights. 3 Note to form: bracketed language to be removed if Block Sale Transferee does not accept the board nomination rights. Company pursuant to a proxy statement of the Company), other than as contemplated by the Governance Agreement or the Stockholders Agreement or the transactions contemplated therebydirectors;
(cvi) seek to call, (A) make any proposal for consideration by stockholders at any annual or to request the calling of, or call a special meeting of the stockholders of the Company, (B) make any offer or seek to make, or make, a stockholder proposal (whether pursuant with or without conditions) with respect to Rule 14a-8 under the Exchange Act or otherwise) at any meeting of the stockholders of the Company, or make a request for a list of the Company’s stockholders, or[, other than pursuant to the Block Sale Transferee’s nomination rights in accordance with Article 5 of this Agreement,]4 seek election of a representative to the Board of Directors, seek to place a representative on the Board of Directors or seek the removal of any director from the Board of Directors, or otherwise acting alone, or by participating in a group, seek to control or influence the governance or policies of the Company;
(d) effect or seek to effect (including, without limitation, by entering into any discussions, negotiations, agreements or understandings whether or not legally enforceable with any third Person), offer or propose (whether publicly or otherwise) to effect, or cause or participate in, or in any way assist or facilitate any other Person to effect or seek, offer or propose (whether publicly or otherwise) to effect or participate in any acquisition of any Company Common Shares (or other equity securities of the Company) (or Beneficial Ownership thereof) in excess of the Ownership Limitation, except in accordance with Section 2.1; provided, that, for the avoidance of doubt, the Block Sale Transferee is permitted to Transfer to an unaffiliated third party any Company Common Shares (or other equity securities of the Company) Beneficially Owned by the Block Sale Transferee, subject to the provisions of Article 8 hereof, if applicable;
(e) effect or seek to effect (including, without limitation, by entering into any discussions, negotiations, agreements or understandings whether or not legally enforceable with any third Person), offer or propose (whether publicly or otherwise) to effect, or cause or participate in, or in any way assist or facilitate any other Person to effect or seek, offer or propose (whether publicly or otherwise) to effect or participate in (i) any tender offer or exchange offer, merger, acquisition, share exchange amalgamation, recapitalization, restructuring, disposition, distribution, spin-off, asset sale, joint venture or other business combination involving the Company or any of its Subsidiaries, (ii) any recapitalization, restructuring, liquidation, dissolution or other extraordinary transaction with respect to the Company or any of its Subsidiaries or any material portion of its or their businessesan “Extraordinary Transaction”), or (iii) any acquisition of any material assets encourage, initiate or businesses of the Company or any of its Subsidiaries;
(f) publicly disclose, or cause or, in a material manner, facilitate the public disclosure (including without limitation through the filing by it of any document or report with the SEC or support any other governmental agency or any disclosure to any 4 Note to form: bracketed language to be removed if Block Sale Transferee does not accept the board nomination rights. journalist, member of the media or securities analyst) of any intent, purpose, plan or proposal to obtain any waiver, or consent under, or any amendment of, any of the provisions of Section 2.1, this Section 3.1, or Article 4 (except as described in Section 4.1) or bring any action to (i) contest the validity of Section 2.1, this Section 3.1 or Article 4, or (ii) seek a release from the restrictions contained in Section 2.1, this Section 3.1 or Article 4;
(g) unless required by law, make or issue or cause to be made or issued any public disclosure, announcement or statement (including without limitation the filing of any document or report with the SEC or any other governmental agency or any disclosure to any journalist, member of the media or securities analyst) (i) in support of any solicitation described in paragraph (a) above (other than solicitations by the Company), (ii) in support of any matter described in paragraph (c) above, (iii) concerning any potential matter described in paragraph (d) above; (iv) concerning any potential matter described in paragraph (e) above; or (v) negatively commenting upon the Company’s corporate strategy, business, corporate activities, board of directors or management (for the avoidance of doubt, making any factual statement about the Company’s corporate strategy, business, corporate activities, board of directors or management shall not be prohibited by this Section 3.1(g)(v)); or
(h) enter into any discussions, negotiations, agreements or understandings with any Person with respect to any of the foregoing or advise, assist or seek to persuade others to take any action third party with respect to any of the foregoing. Notwithstanding the foregoing, (aC) [make any public communication in opposition to any Extraordinary Transaction approved by the restrictions Board or (D) call or seek to call a special meeting of stockholders;
(vii) seek, alone or in Sections 3.1(d)concert with others, 3.1(e)representation on the Board, 3.1(f)except as specifically permitted in this Agreement;
(viii) seek to advise, 3.1(g)(iii)encourage, 3.1(g)(iv), 3.1(g)(v) and 3.1(h) (support or influence any person with respect to the extent it relates to voting or disposition of any securities of the foregoing) shall not apply Company at any time that annual or special meeting of stockholders, except in accordance with Section 3;
(iix) make any request or submit any proposal to amend the terms of this Agreement other than through non-public communications with the Company fails that would not be reasonably determined to comply in all material respects with its trigger public disclosure obligations under Article 5 hereof, which failure continues unremedied for a period of 10 business days following receipt by the Company of a written notice from the Block Sale Transferee of such failure or (ii) the Block Sale Transferee has relinquished its nomination rights pursuant to Article 5 and all Block Sale Transferee nominated directors have resignedany Party; or (b)]5 in the event that or
(x) the Board of Directors determines that the Company should engage in disclose any transaction described in Section 3.1(e)(i) intention, plan or 3.1(e)(ii), the Block Sale Transferee shall be permitted to participate in such Board of Directors’ approved transaction as a shareholder on the same terms and conditions as any other shareholder of the Company, (y) the Board of Directors determines that the Company should solicit from one or more Persons or enter into discussions with one or more Persons regarding, or invites any other Person or group to make a proposal (without similarly inviting the Block Sale Transferee to make a similar proposal) with respect to an acquisition of (i) all or substantially all of the equity securities or assets of the Company or any of its Subsidiaries (by merger, tender offer or otherwise) or (ii) any material assets or businesses of the Company or any of its Subsidiaries, the Block Sale Transferee shall have the right to make a non-public competing proposal to the Board of Directors in compliance arrangement inconsistent with any written procedures generally applicable to Persons making proposals provided by the Company 5 Note to form: enumerated restrictions to be removed if the Block Sale Transferee does not accept the board nomination rights. or the Board of Directors or (z) any third party that is not an Affiliate of the Block Sale Transferee makes a bona fide offer or proposal, with respect to a matter described in Section 3.1(d) or 3.1(e) above (a “Third Party Proposal”), the Block Sale Transferee (A) shall have the right to make a non-public competing proposal to the Board of Directors and may publicly announce that it has made a competing proposal to the Board of Directors so long as such public announcement does not constitute an offer or a solicitation to any recipient thereof and (B) may tender, exchange or otherwise sell or transfer its Company Common Shares (or other equity securities of the Company) to such third party in accordance with the Third Party Proposal; provided, however, that in the case of clauses (y) and (z), the Block Sale Transferee shall be prohibited from participating with, joining in a group with or providing financing to any such third party). [For the avoidance of doubt, any discussions involving the directors nominated by the Block Sale Transferee pursuant to Article 5 hereof (i) at a meeting of the Board of Directors or (ii) with management of the Company, other members of the Board of Directors or any of the Company’s advisors or representatives, in the case of clauses (i) and (ii), while acting in such directors’ capacity as members of the Board of Directors, shall not be deemed to violate any of the provisions provision of this Article 3.]6Section 4.
Appears in 2 contracts
Samples: Board Composition Agreement (VIEX Capital Advisors, LLC), Board Composition Agreement (Maxwell Technologies Inc)
Standstill Provisions. During (a) Starboard agrees that, from the date of this Agreement until the earlier of (i) the date that is fifteen (15) business days prior to the deadline for the submission of stockholder nominations for the 2016 Annual Meeting pursuant to the Company’s bylaws or (ii) the date that is one hundred thirty-five (135) days prior to the first anniversary of the 2015 Annual Meeting (the “Standstill Period”), unless expressly authorized in writing to do so by a majority neither it nor any of the members of the Board of Directors, acting through a committee of directors that qualify as “independent directors” as defined by applicable stock exchange listing rules [(which term, for this purpose, will exclude any directors nominated by the Block Sale Transferee)]1, the Block Sale Transferee shall notits Affiliates or Associates will, and shall it will cause each of its Affiliates and Associates not to, directly or indirectly, acting alone or as part of a groupin any manner:
(ai) makeengage in any solicitation of proxies or consents or become a “participant” in a “solicitation” as such terms are defined in Regulation 14A under the Exchange Act of proxies or consents (including, without limitation, any solicitation of consents that seeks to call a special meeting of stockholders), in each case, with respect to securities of the Company;
(ii) form, join or in any way participate in any solicitation “group” (within the meaning of any proxy [(but without regard to the exclusion set forth in Rule 14a-1(l)(2)(ivSection 13(d)(3) under of the Exchange Act from the definition of “solicitation”)]2 to vote any Company Common Shares (or other equity securities of the CompanyAct) with respect to the Common Stock (other than a “group” that includes all or some of the persons identified on Exhibit A, but does not include any matter other entities or persons not identified on Exhibit A as of the date hereof); provided, however, that nothing herein shall limit the ability of an Affiliate of Starboard to join the “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;
(includingiii) deposit any Common Stock in any voting trust or subject any Common Stock to any arrangement or agreement with respect to the voting of any Common Stock, without limitationother than any such voting trust, arrangement or agreement solely among the members of Starboard and otherwise in accordance with this Agreement;
(iv) seek or encourage any person to submit nominations in furtherance of a “contested solicitation solicitation” for the election or removal of directors with respect to the Company)Company or seek, encourage or take any other than solicitations action with respect to the election or acting removal of any directors; provided, however, that nothing in this Agreement shall prevent Starboard or its Affiliates or Associates from taking actions in furtherance of identifying director candidates in connection with the 2016 Annual Meeting so long as such actions do not create a participant public disclosure obligation for Starboard and are undertaken on a basis reasonably designed to be confidential and in support accordance in all material respects with Starboard’s normal practices in the circumstances;
(A) make any proposal for consideration by stockholders at any annual or special meeting of all stockholders of the Company’s nominees [including, (B) make any offer or proposal (with or without limitationconditions) with respect to a merger, acquisition, recapitalization, restructuring, disposition or other business combination involving Starboard and the nominees of the Block Sale Transferee pursuant to Article 5]3;
Company, or (bC) formpublicly comment on any third party proposal regarding any merger, join in acquisition, recapitalization, restructuring, disposition or in any way participate in a group (for the avoidance of doubt, the Block Sale Transferee shall not be deemed to have formed, joined in or in any way participated in a group with the Company as a result of the Block Sale Transferee’s execution of this Agreement) other business combination with respect to the Company Common Shares by such third party prior to such proposal becoming public;
(vi) seek, alone or other equity in concert with others, representation on the Board, except as specifically contemplated in Section 1;
(vii) seek to advise, encourage, support or influence any person with respect to the voting or disposition of any securities of the Company) Company at any annual or deposit any Company Common Shares (or other equity securities of the Company) in a voting trust or similar arrangement or subject any Company Common Shares (or other equity securities of the Company) to any voting agreement or similar arrangement, or grant any proxy with respect to any Company Common Shares (or other equity securities of the Company) (other than to a designated representative of the 1 Note to form: bracketed language to be removed if Block Sale Transferee does not accept the board nomination rights. 2 Note to form: bracketed language to be removed if Block Sale Transferee does not accept the board nomination rights. 3 Note to form: bracketed language to be removed if Block Sale Transferee does not accept the board nomination rights. Company pursuant to a proxy statement of the Company), other than as contemplated by the Governance Agreement or the Stockholders Agreement or the transactions contemplated thereby;
(c) seek to call, or to request the calling of, or call a special meeting of the stockholders of the Company, or seek to make, or make, a stockholder proposal (whether pursuant to Rule 14a-8 under the Exchange Act or otherwise) at any meeting of the stockholders of the Company, or make a request for a list of the Company’s stockholders, or[, other than pursuant to the Block Sale Transferee’s nomination rights in accordance with Article 5 of this Agreement,]4 seek election of a representative to the Board of Directors, seek to place a representative on the Board of Directors or seek the removal of any director from the Board of Directors, or otherwise acting alone, or by participating in a group, seek to control or influence the governance or policies of the Company;
(d) effect or seek to effect (including, without limitation, by entering into any discussions, negotiations, agreements or understandings whether or not legally enforceable with any third Person), offer or propose (whether publicly or otherwise) to effect, or cause or participate in, or in any way assist or facilitate any other Person to effect or seek, offer or propose (whether publicly or otherwise) to effect or participate in any acquisition of any Company Common Shares (or other equity securities of the Company) (or Beneficial Ownership thereof) in excess of the Ownership Limitation, except in accordance with Section 2.11; providedor
(viii) make any request or submit any proposal to amend the terms of this Agreement other than through non-public communications with the Company that would not be reasonably determined to trigger public disclosure obligations for any Party.
(b) Except as expressly provided in Section 1 or Section 2(a), thateach member of Starboard shall be entitled to:
(i) vote its or his shares on any other proposal duly brought before the 2015 Annual Meeting, for the avoidance or otherwise vote as each member of doubtStarboard determines in its or his sole discretion; or
(ii) disclose, the Block Sale Transferee is permitted publicly or otherwise, how it intends to Transfer vote or act with respect to an unaffiliated third party any Company Common Shares (or other equity securities of the Company) Beneficially Owned , any stockholder proposal or other matter to be voted on by the Block Sale Transferee, subject to the provisions of Article 8 hereof, if applicable;
(e) effect or seek to effect (including, without limitation, by entering into any discussions, negotiations, agreements or understandings whether or not legally enforceable with any third Person), offer or propose (whether publicly or otherwise) to effect, or cause or participate in, or in any way assist or facilitate any other Person to effect or seek, offer or propose (whether publicly or otherwise) to effect or participate in (i) any tender offer or exchange offer, merger, acquisition, share exchange or other business combination involving the Company or any of its Subsidiaries, (ii) any recapitalization, restructuring, liquidation, dissolution or other extraordinary transaction with respect to the Company or any of its Subsidiaries or any material portion of its or their businesses, or (iii) any acquisition of any material assets or businesses stockholders of the Company or any of its Subsidiaries;
(f) publicly discloseand the reasons therefor; provided that, or cause oras applicable, all such activity is in a material manner, facilitate the public disclosure (including without limitation through the filing by it of any document or report compliance with the SEC or any other governmental agency or any disclosure to any 4 Note to form: bracketed language to be removed if Block Sale Transferee does not accept the board nomination rights. journalist, member requirements of the media or securities analyst) of any intent, purpose, plan or proposal to obtain any waiver, or consent under, or any amendment of, any of the provisions of Section 2.1, this Section 3.1, or Article 4 (except as described in Section 4.1) or bring any action to (i) contest the validity of Section 2.1, this Section 3.1 or Article 4, or (ii) seek a release from the restrictions contained in Section 2.1, this Section 3.1 or Article 4;Agreement.
(g) unless required by law, make or issue or cause to be made or issued any public disclosure, announcement or statement (including without limitation the filing of any document or report with the SEC or any other governmental agency or any disclosure to any journalist, member of the media or securities analyst) (i) in support of any solicitation described in paragraph (a) above (other than solicitations by the Company), (ii) in support of any matter described in paragraph (c) above, (iii) concerning any potential matter described in paragraph (d) above; (iv) concerning any potential matter described in paragraph (e) above; or (v) negatively commenting upon The Company agrees that it shall provide Starboard written notice of the Company’s corporate strategy, business, corporate activities, board of directors or management (date set for the avoidance of doubt, making any factual statement about the Company’s corporate strategy, business, corporate activities, board of directors or management shall not be prohibited by this Section 3.1(g)(v)); or
2016 Annual Meeting at least fifteen (h15) enter into any discussions, negotiations, agreements or understandings with any Person with respect to any of the foregoing or advise, assist or seek to persuade others to take any action with respect to any of the foregoing. Notwithstanding the foregoing, (a) [the restrictions in Sections 3.1(d), 3.1(e), 3.1(f), 3.1(g)(iii), 3.1(g)(iv), 3.1(g)(v) and 3.1(h) (business days prior to the extent it relates to any of the foregoingdate that is one hundred twenty (120) shall not apply at any time that (i) the Company fails to comply in all material respects with its obligations under Article 5 hereof, which failure continues unremedied for a period of 10 business days following receipt by the Company of a written notice from the Block Sale Transferee of such failure or (ii) the Block Sale Transferee has relinquished its nomination rights pursuant to Article 5 and all Block Sale Transferee nominated directors have resigned; or (b)]5 in the event that (x) the Board of Directors determines that the Company should engage in any transaction described in Section 3.1(e)(i) or 3.1(e)(ii), the Block Sale Transferee shall be permitted to participate in such Board of Directors’ approved transaction as a shareholder on the same terms and conditions as any other shareholder of the Company, (y) the Board of Directors determines that the Company should solicit from one or more Persons or enter into discussions with one or more Persons regarding, or invites any other Person or group to make a proposal (without similarly inviting the Block Sale Transferee to make a similar proposal) with respect to an acquisition of (i) all or substantially all of the equity securities or assets of the Company or any of its Subsidiaries (by merger, tender offer or otherwise) or (ii) any material assets or businesses of the Company or any of its Subsidiaries, the Block Sale Transferee shall have the right to make a non-public competing proposal prior to the Board of Directors in compliance with any written procedures generally applicable to Persons making proposals provided by the Company 5 Note to form: enumerated restrictions to be removed if the Block Sale Transferee does not accept the board nomination rights. or the Board of Directors or (z) any third party that is not an Affiliate of the Block Sale Transferee makes a bona fide offer or proposal, with respect to a matter described in Section 3.1(d) or 3.1(e) above (a “Third Party Proposal”), the Block Sale Transferee (A) shall have the right to make a non-public competing proposal to the Board of Directors and may publicly announce that it has made a competing proposal to the Board of Directors so long as such public announcement does not constitute an offer or a solicitation to any recipient thereof and (B) may tender, exchange or otherwise sell or transfer its Company Common Shares (or other equity securities of the Company) to such third party in accordance with the Third Party Proposal; provided, however, that in the case of clauses (y) and (z), the Block Sale Transferee shall be prohibited from participating with, joining in a group with or providing financing to any such third party). [For the avoidance of doubt, any discussions involving the directors nominated by the Block Sale Transferee pursuant to Article 5 hereof (i) at a meeting of the Board of Directors or (ii) with management of the Company, other members of the Board of Directors or any of the Company’s advisors or representatives, in the case of clauses (i) and (ii), while acting in such directors’ capacity as members of the Board of Directors, shall not be deemed to violate any of the provisions of this Article 3.]62016 Annual Meeting.
Appears in 2 contracts
Samples: Shareholder Agreement (LSB Industries Inc), Shareholder Agreement (Starboard Value LP)
Standstill Provisions. During (a) The standstill period (the “Standstill Period”) will begin on the Signing Date and shall extend until the date that is ten (10) Business Days prior to the deadline for the submission of stockholder nominations for directors for the Company’s 2025 annual meeting of stockholders, pursuant to the By-Laws.
(b) For a period of twelve (12) months following the Signing Date (“Initial Security Period”), each MRMP Stockholder agrees that neither such MRMP Stockholder, nor any of his or its respective Affiliates and controlled Associates, shall acquire, or offer, seek or agree to acquire, by purchase or otherwise, or direct any third party in the acquisition of, any Company Common Stock or any securities convertible or exchangeable into or exercisable for Company Common Stock (collectively, “Company Securities”), or rights or options to acquire any Company Securities, or engage in any swap instrument or derivative hedging transactions or other derivative agreements of any nature with respect to Company Securities; provided that Xx. Xxx X. Sherwood and his Affiliates may acquire beneficial ownership of, or economic exposure to, Company Securities, provided that, after giving effect to any such acquisition, Xx. Xxx X. Sherwood and his Affiliates, taken together, shall not have, in the aggregate, beneficial ownership of, or economic exposure to, more than twenty-eight percent (28%) of the Company’s outstanding Company Securities that are entitled to vote at any meeting of the Company’s stockholders; provided, further, that, following the Initial Security Period and for a period of twelve (12) months thereafter, Xx. Xxx X. Sherwood and his Affiliates may acquire beneficial ownership of, or economic exposure to, Company Securities, provided that, after giving effect to any such acquisition, Xx. Xxx X. Sherwood and his Affiliates, taken together, shall not have, in the aggregate, beneficial ownership of, or economic exposure to, more than thirty percent (30%) of the Company’s outstanding Company Securities that are entitled to vote at any meeting of the Company’s stockholders; provided, however, that, subject to the approval of the Board, including a majority of the non-Sherwood Designees, no additional ownership shall be deemed to have occurred solely due to (i) a stock split, reverse stock split, reclassification, reorganization or other transaction by the Company affecting any class of the outstanding capital stock of the Company generally, (ii) a stock dividend or other pro rata distribution by the Company to holders of its outstanding capital stock, or (iii) any increase in the percentage ownership by Xx. Xxx X. Sherwood or his Affiliates of outstanding shares of the Company resulting from any action taken by the Company (any such action by the Company in clauses (i) – (iii) of this Section 2(b), a “Company Action”), and no action will be taken that disproportionately reduces Xx. Xxx X. Sherwood’s or his Affiliates’ ownership percentages, as compared to other stockholders of the Company, as a result of such Company Action.
(c) The MRMP Stockholders agree that during the Standstill Period, unless expressly authorized in writing to do so by a majority none of the members MRMP Stockholders nor any of their respective Affiliates will, and each of the Board MRMP Stockholders will cause each of Directors, acting through a committee of directors that qualify as “independent directors” as defined by applicable stock exchange listing rules [(which term, for this purpose, will exclude any directors nominated by the Block Sale Transferee)]1, the Block Sale Transferee shall not, and shall cause its their respective Affiliates not to, directly or indirectly, acting in any manner, alone or in concert with others, without prior written consent, invitation, approval or authorization of the Board or except as part of a groupotherwise provided for in this Term Sheet:
5 (ai) make, or in any way participate in or propose any solicitation of any proxy [(but without regard to the exclusion set forth in Rule 14a-1(l)(2)(iv) under the Exchange Act from the definition of “solicitation”)]2 to vote tender or exchange offer for any Company Common Shares (Securities or other equity securities of the Company) with respect to any matter (includingmerger, without limitation, any contested solicitation for the election of directors with respect to the Company), other than solicitations or acting as a participant in support of all of the Company’s nominees [including, without limitation, the nominees of the Block Sale Transferee pursuant to Article 5]3;
(b) form, join in or in any way participate in a group (for the avoidance of doubt, the Block Sale Transferee shall not be deemed to have formed, joined in or in any way participated in a group with the Company as a result of the Block Sale Transferee’s execution of this Agreement) with respect to the Company Common Shares (or other equity securities of the Company) or deposit any Company Common Shares (or other equity securities of the Company) in a voting trust or similar arrangement or subject any Company Common Shares (or other equity securities of the Company) to any voting agreement or similar arrangement, or grant any proxy with respect to any Company Common Shares (or other equity securities of the Company) (other than to a designated representative of the 1 Note to form: bracketed language to be removed if Block Sale Transferee does not accept the board nomination rights. 2 Note to form: bracketed language to be removed if Block Sale Transferee does not accept the board nomination rights. 3 Note to form: bracketed language to be removed if Block Sale Transferee does not accept the board nomination rights. Company pursuant to a proxy statement of the Company), other than as contemplated by the Governance Agreement or the Stockholders Agreement or the transactions contemplated thereby;
(c) seek to call, or to request the calling of, or call a special meeting of the stockholders of the Company, or seek to make, or make, a stockholder proposal (whether pursuant to Rule 14a-8 under the Exchange Act or otherwise) at any meeting of the stockholders of the Company, or make a request for a list of the Company’s stockholders, or[, other than pursuant to the Block Sale Transferee’s nomination rights in accordance with Article 5 of this Agreement,]4 seek election of a representative to the Board of Directors, seek to place a representative on the Board of Directors or seek the removal of any director from the Board of Directors, or otherwise acting alone, or by participating in a group, seek to control or influence the governance or policies of the Company;
(d) effect or seek to effect (including, without limitation, by entering into any discussions, negotiations, agreements or understandings whether or not legally enforceable with any third Person), offer or propose (whether publicly or otherwise) to effect, or cause or participate in, or in any way assist or facilitate any other Person to effect or seek, offer or propose (whether publicly or otherwise) to effect or participate in any acquisition of any Company Common Shares (or other equity securities of the Company) (or Beneficial Ownership thereof) in excess of the Ownership Limitation, except in accordance with Section 2.1; provided, that, for the avoidance of doubt, the Block Sale Transferee is permitted to Transfer to an unaffiliated third party any Company Common Shares (or other equity securities of the Company) Beneficially Owned by the Block Sale Transferee, subject to the provisions of Article 8 hereof, if applicable;
(e) effect or seek to effect (including, without limitation, by entering into any discussions, negotiations, agreements or understandings whether or not legally enforceable with any third Person), offer or propose (whether publicly or otherwise) to effect, or cause or participate in, or in any way assist or facilitate any other Person to effect or seek, offer or propose (whether publicly or otherwise) to effect or participate in (i) any tender offer or exchange offer, mergerconsolidation, acquisition, share exchange or other business combination involving the Company or any of its Subsidiariescombination, (ii) any recapitalization, restructuring, liquidation, dissolution or other similar extraordinary transaction with respect to involving the Company or any of its Subsidiaries subsidiaries or any material portion of its or their businesses, or (iii) any acquisition of any material assets or businesses of the Company or any of its Subsidiaries;
(f) publicly disclose, or cause or, in a material manner, facilitate the public disclosure (including without limitation through the filing by it of any document or report with the SEC or any other governmental agency or any disclosure to any 4 Note to form: bracketed language to be removed if Block Sale Transferee does not accept the board nomination rights. journalist, member of the media or securities analyst) of any intent, purpose, plan or proposal to obtain any waiver, or consent under, or any amendment of, any of the provisions of Section 2.1, this Section 3.1, or Article 4 (except as described in Section 4.1) or bring any action to (i) contest the validity of Section 2.1, this Section 3.1 or Article 4, or (ii) seek a release from the restrictions contained in Section 2.1, this Section 3.1 or Article 4;
(g) unless required by law, make or issue or cause to be made or issued any public disclosure, announcement or statement (including without limitation the filing of any document or report with the SEC or any other governmental agency or any disclosure to any journalist, member of the media or securities analyst) (i) in support of any solicitation described in paragraph (a) above (other than solicitations by the Company), (ii) in support of any matter described in paragraph (c) above, (iii) concerning any potential matter described in paragraph (d) above; (iv) concerning any potential matter described in paragraph (e) above; or (v) negatively commenting upon the Company’s corporate strategy, business, corporate activities, board of directors or management (for the avoidance of doubt, making any factual statement about the Company’s corporate strategy, business, corporate activities, board of directors or management shall not be prohibited by this Section 3.1(g)(v)); or
(h) enter into any discussions, negotiations, agreements or understandings with any Person with respect to any of the foregoing or advise, assist or seek to persuade others to take any action with respect to any of the foregoing. Notwithstanding the foregoing, (a) [the restrictions in Sections 3.1(d), 3.1(e), 3.1(f), 3.1(g)(iii), 3.1(g)(iv), 3.1(g)(v) and 3.1(h) (to the extent it relates to any of the foregoing) shall not apply at any time that (i) the Company fails to comply in all material respects with its obligations under Article 5 hereof, which failure continues unremedied for a period of 10 business days following receipt by the Company of a written notice from the Block Sale Transferee of such failure or (ii) the Block Sale Transferee has relinquished its nomination rights pursuant to Article 5 and all Block Sale Transferee nominated directors have resigned; or (b)]5 in the event that (x) the Board of Directors determines that the Company should engage in any transaction described in Section 3.1(e)(i) or 3.1(e)(ii), the Block Sale Transferee shall be permitted to participate in such Board of Directors’ approved transaction as a shareholder on the same terms and conditions as any other shareholder of the Company, (y) the Board of Directors determines that the Company should solicit from one or more Persons or enter into discussions with one or more Persons regarding, or invites any other Person or group to make a proposal (without similarly inviting the Block Sale Transferee to make a similar proposal) with respect to an acquisition of (i) all or substantially all of the equity securities or assets of the Company or any of its Subsidiaries (by merger, tender offer or otherwise) or (ii) any material assets or businesses of the Company or any of its Subsidiaries, the Block Sale Transferee shall have the right to make a non-public competing proposal to the Board of Directors in compliance with any written procedures generally applicable to Persons making proposals provided by the Company 5 Note to form: enumerated restrictions to be removed if the Block Sale Transferee does not accept the board nomination rights. or the Board of Directors or (z) any third party that is not an Affiliate of the Block Sale Transferee makes a bona fide offer or proposal, with respect to a matter described in Section 3.1(d) or 3.1(e) above (a “Third Party Proposal”), the Block Sale Transferee (A) shall have the right to make a non-public competing proposal to the Board of Directors and may publicly announce that it has made a competing proposal to the Board of Directors so long as such public announcement does not constitute an offer or a solicitation to any recipient thereof and (B) may tender, exchange or otherwise sell or transfer its Company Common Shares (or other equity securities of the Company) to such third party in accordance with the Third Party Proposal; provided, however, that in the case of clauses (y) and (z), the Block Sale Transferee shall be prohibited from participating with, joining in a group with or providing financing to any such third party). [For the avoidance of doubt, any discussions involving the directors nominated by the Block Sale Transferee pursuant to Article 5 hereof (i) at a meeting of the Board of Directors or (ii) with management of the Company, other members of the Board of Directors or any of the Company’s advisors or representatives, in the case of clauses (i) and (ii), while acting in such directors’ capacity as members of the Board of Directors, shall not be deemed to violate any of the provisions of this Article 3.]6assets;
Appears in 2 contracts
Samples: Cooperation and Support Binding Term Sheet (Barnwell Industries Inc), Cooperation and Support Binding Term Sheet (Kinzler Alexander C)
Standstill Provisions. During Commencing on the Standstill Perioddate hereof and until the Termination Date, unless expressly authorized otherwise agreed in writing to do so by a majority of the members of the Board of Directors, acting through a committee of directors that qualify as “independent directors” as defined by applicable stock exchange listing rules [(which term, for this purpose, will exclude any directors nominated by the Block Sale Transferee)]1Equity One Board and Gazit Globe, the Block Sale Transferee shall notLIH will, and shall will cause its Affiliates each member of Liberty Group to: (i) with respect to Equity One or EQY Common Stock, not to, directly or indirectly, acting alone or as part of a group:
(a) make, engage, vote in favor of or in any way participate in or influence, directly or indirectly, a hostile takeover or other similar action or any solicitation “solicitation,” (as such term is used in the proxy rules of the Commission) by way of tender offer, exchange offer, merger or other business combination, proxies, consents (whether or not relating to the election or removal of directors), voting agreements, change of management or otherwise, except in connection with any of the foregoing that is recommended or not opposed by the Equity One Board and that is not initiated by Liberty Group, provided, however, that the presence of the director designated by LIH on the Equity One Board will not violate this Section 2.8, and notwithstanding this Section 2.8, such board member may vote and take such other actions as he or she determines is appropriate in accordance with the exercise of his or her duties as a director and provided further that any member of Liberty Group may abstain from voting on any matter described in this Section 2.8 and, subject to Section 3.4, may tender shares of EQY Common Stock Beneficially Owned by such member in connection with any tender offer or exchange offer without violation of this Section 2.8, (ii) except as provided for in this Agreement, not seek, alone or in concert with others, election or appointment to, or representation on, or nominate or propose the nomination of any candidate to, the Equity One Board, (iii) not initiate, propose or otherwise “solicit” (as such term is used in the proxy [(but without regard to the exclusion set forth in Rule 14a-1(l)(2)(iv) under the Exchange Act from the definition of “solicitation”)]2 to vote any Company Common Shares (or other equity securities rules of the CompanyCommission) with respect to any matter (including, without limitation, any contested solicitation stockholders of Equity One for the election approval of directors with respect stockholder proposals made to the Company), other than solicitations or acting as a participant in support of all of the Company’s nominees [including, without limitation, the nominees of the Block Sale Transferee pursuant to Article 5]3;
(b) form, join in or in any way participate in a group (for the avoidance of doubt, the Block Sale Transferee shall not be deemed to have formed, joined in or in any way participated in a group with the Company as a result of the Block Sale Transferee’s execution of this Agreement) with respect to the Company Common Shares (or other equity securities of the Company) or deposit any Company Common Shares (or other equity securities of the Company) in a voting trust or similar arrangement or subject any Company Common Shares (or other equity securities of the Company) to any voting agreement or similar arrangement, or grant any proxy with respect to any Company Common Shares (or other equity securities of the Company) (other than to a designated representative of the 1 Note to form: bracketed language to be removed if Block Sale Transferee does not accept the board nomination rights. 2 Note to form: bracketed language to be removed if Block Sale Transferee does not accept the board nomination rights. 3 Note to form: bracketed language to be removed if Block Sale Transferee does not accept the board nomination rights. Company pursuant to a proxy statement of the Company), other than as contemplated by the Governance Agreement or the Stockholders Agreement or the transactions contemplated thereby;
(c) seek to call, or to request the calling of, or call a special meeting of the stockholders of the Company, or seek to make, or make, a stockholder proposal (Equity One whether made pursuant to Rule 14a-8 or Rule 14a-4 under the Exchange Act or otherwise) at any meeting of the stockholders of the Company, or make a request for a list of the Company’s stockholders, or[, other than pursuant to the Block Sale Transferee’s nomination rights in accordance with Article 5 of this Agreement,]4 seek election of a representative to the Board of Directors, seek to place a representative on the Board of Directors or seek the removal of any director from the Board of Directors, or otherwise acting alone, or by participating in a group, seek to control or influence the governance or policies of the Company;
(d) effect or seek to effect (including, without limitation, by entering into any discussions, negotiations, agreements or understandings whether or not legally enforceable with any third Person), offer or propose (whether publicly or otherwise) to effect, or cause or participate inencourage or attempt to cause or encourage any other person to initiate any such stockholder proposal, regardless of its purpose, and (iv) not purchase or cause to be purchased or otherwise acquire or agree to acquire, or in any way assist become or facilitate agree to become the Beneficial Owner of, any other Person to effect securities issued by Equity One, or seek, offer any securities convertible into or propose exchangeable for EQY Common Stock (whether publicly other than EQY-CSC Class A Shares) or otherwise) to effect or participate in any acquisition of any Company Common Shares (or other equity securities of Equity One, if in any such case immediately after the Company) (or Beneficial Ownership thereof) taking of such action Liberty Group would, in the aggregate, Beneficially Own in excess of the greater of (A) a number of shares of voting stock of Equity One equal to 19.9% of the shares of Equity One that are outstanding as of the Closing (as such amount may be adjusted after the date of Closing for splits, reclassifications, recapitalizations, recombinations and/or similar events or transactions) (such number of shares to be agreed by the parties as of the Closing and set forth on Schedule I to be attached to this Agreement) or (B) 15% of the EQY Common Stock outstanding on a Fully Diluted Basis from time to time (the “Ownership LimitationCap”), except which Ownership Cap will automatically be reduced from time to time, if Liberty Group sells any EQY Common Stock, to a new Ownership Cap that is equal to Liberty Group’s then Beneficial Ownership percentage, in accordance with Section 2.1the aggregate, of the shares of EQY Common Stock then outstanding on a Fully Diluted Basis; provided, that, for the avoidance of doubt, the Block Sale Transferee is permitted however that in all events Liberty Group may Beneficially Own or acquire up to Transfer to an unaffiliated third party any Company Common Shares (or other equity securities 9.9% of the Companyshares of EQY Common Stock then outstanding on a Fully Diluted Basis and Liberty Group may acquire shares in order to satisfy the ownership requirements set forth in Section 2.2(ii) Beneficially Owned by the Block Sale Transfereeduring any Cure Period; provided, subject to the provisions of Article 8 hereof, if applicable;
(e) effect or seek to effect (including, without limitation, by entering into any discussions, negotiations, agreements or understandings whether or not legally enforceable with any third Person), offer or propose (whether publicly or otherwise) to effect, or cause or participate in, or however in any way assist or facilitate any other Person to effect or seek, offer or propose (whether publicly or otherwise) to effect or participate in (i) any tender offer or exchange offer, merger, acquisition, share exchange or other business combination involving the Company or any of its Subsidiaries, (ii) any recapitalization, restructuring, liquidation, dissolution or other extraordinary transaction with respect to the Company or any of its Subsidiaries or any material portion of its or their businesses, or (iii) all events any acquisition of any material assets EQY Common Stock by Liberty Group in addition to those shares of EQY Common Stock acquired pursuant to the Subscription Agreement or businesses of the Company or any of its Subsidiaries;
(f) publicly disclose, or cause or, in a material manner, facilitate the public disclosure (including without limitation through the filing by it of any document or report with the SEC or any other governmental agency or any disclosure to any 4 Note to form: bracketed language to be removed if Block Sale Transferee does not accept the board nomination rights. journalist, member of the media or securities analyst) of any intent, purpose, plan or proposal to obtain any waiver, or consent under, or any amendment of, any of the provisions of Section 2.1, this Section 3.1, or Article 4 (except as described in Section 4.1) or bring any action to (i) contest the validity of Section 2.1, this Section 3.1 or Article 4, or (ii) seek a release from the restrictions contained in Section 2.1, this Section 3.1 or Article 4;
(g) unless required by law, make or issue or cause to be made or issued any public disclosure, announcement or statement (including without limitation the filing of any document or report with the SEC or any other governmental agency or any disclosure to any journalist, member of the media or securities analyst) (i) in support of any solicitation described in paragraph (a) above (other than solicitations by the Company), (ii) in support of any matter described in paragraph (c) above, (iii) concerning any potential matter described in paragraph (d) above; (iv) concerning any potential matter described in paragraph (e) above; or (v) negatively commenting issuable upon the Company’s corporate strategy, business, corporate activities, board redemption of directors or management EQY-CSC Class A Shares acquired by LIH at Closing (for the avoidance of doubt, making any factual statement about the Company’s corporate strategy, business, corporate activities, board of directors or management shall not be prohibited by this Section 3.1(g)(v)); or
(h) enter into any discussions, negotiations, agreements or understandings with any Person with respect to any of the foregoing or advise, assist or seek to persuade others to take any action with respect to any of the foregoing. Notwithstanding the foregoing, (a) [the restrictions in Sections 3.1(d), 3.1(e), 3.1(f), 3.1(g)(iii), 3.1(g)(iv), 3.1(g)(v) and 3.1(h) (to the extent it relates to any of the foregoing) shall not apply at any time that (i) the Company fails to comply in all material respects with its obligations under Article 5 hereof, which failure continues unremedied for a period of 10 business days following receipt by the Company of a written notice from the Block Sale Transferee of such failure or (ii) the Block Sale Transferee has relinquished its nomination rights pursuant to Article 5 and all Block Sale Transferee nominated directors have resigned; or (b)]5 in the event that (x) the Board of Directors determines that the Company should engage in any transaction described in Section 3.1(e)(i) or 3.1(e)(ii), the Block Sale Transferee shall be permitted to participate in such Board of Directors’ approved transaction as a shareholder on the same terms and conditions as any other shareholder of the Company, (y) the Board of Directors determines that the Company should solicit from one or more Persons or enter into discussions with one or more Persons regarding, or invites any other Person or group to make a proposal (without similarly inviting the Block Sale Transferee to make a similar proposal) with respect to an acquisition of (i) all or substantially all of the equity securities or assets of the Company or any of its Subsidiaries (by merger, tender offer or otherwise) or (ii) any material assets or businesses of the Company or any of its Subsidiaries, the Block Sale Transferee shall have the right to make a non-public competing proposal to the Board of Directors in compliance with any written procedures generally applicable to Persons making proposals provided by the Company 5 Note to form: enumerated restrictions to be removed if the Block Sale Transferee does not accept the board nomination rights. or the Board of Directors or (z) any third party that is not an Affiliate of the Block Sale Transferee makes a bona fide offer or proposal, with respect to a matter described in Section 3.1(d) or 3.1(e) above (a “Third Party ProposalAdditional Shares”), the Block Sale Transferee (A) shall have the right to make a non-public competing proposal to the Board of Directors and may publicly announce that it has made a competing proposal to the Board of Directors so long as such public announcement does not constitute an offer or a solicitation to any recipient thereof and (B) may tenderonly be acquired, exchange directly or otherwise sell or transfer its Company Common Shares (or other equity securities of the Company) to such third party in accordance with the Third Party Proposal; providedindirectly, however, that in the case of clauses (y) and (z), the Block Sale Transferee shall be prohibited from participating with, joining in through a group with or providing financing to any such third party). [For the avoidance of doubt, any discussions involving the directors nominated by the Block Sale Transferee pursuant to Article 5 hereof (i) at a meeting of the Board of Directors or (ii) with management of the Company, other members of the Board of Directors or any of the Company’s advisors or representatives, in the case of clauses (i) and (ii), while acting in such directors’ capacity as members of the Board of Directors, shall not be deemed to violate any of the provisions of this Article 3.]6U.S. controlled entity.
Appears in 2 contracts
Samples: Equityholders Agreement (Gazit-Globe LTD), Equityholders Agreement (Equity One, Inc.)
Standstill Provisions. During (a) Starboard agrees that, from the date of this Agreement until the earlier of (x) the date that is fifteen (15) business days prior to the deadline for the submission of stockholder nominations for the 2017 annual meeting of stockholders (the “2017 Annual Meeting”) pursuant to the Company’s Bylaws or (y) the date that is one hundred thirty (130) days prior to the first anniversary of the 2016 Annual Meeting (the “Standstill Period”), unless expressly authorized in writing to do so by a majority neither it nor any of the members of the Board of Directors, acting through a committee of directors that qualify as “independent directors” as defined by applicable stock exchange listing rules [(which term, for this purpose, will exclude any directors nominated by the Block Sale Transferee)]1, the Block Sale Transferee shall notits Affiliates or Associates will, and shall it will cause each of its Affiliates and Associates not to, directly or indirectly, acting alone or as part of a groupin any manner:
(ai) makeengage in any solicitation of proxies or consents or become a “participant” in a “solicitation” (as such terms are defined in Regulation 14A under the Exchange Act) of proxies or consents (including, without limitation, any solicitation of consents that seeks to call a special meeting of stockholders), in each case, with respect to securities of the Company;
(ii) form, join or in any way participate in any solicitation “group” (within the meaning of any proxy [(but without regard to the exclusion set forth in Rule 14a-1(l)(2)(ivSection 13(d)(3) under of the Exchange Act from the definition of “solicitation”)]2 to vote any Company Common Shares (or other equity securities of the CompanyAct) with respect to the Common Stock (other than a “group” that includes all or some of the entities or persons identified on Exhibit A, but does not include any matter other entities or persons not identified on Exhibit A as of the date hereof); provided, however, that nothing herein shall limit the ability of an Affiliate of Starboard to join the “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;
(includingiii) deposit any Common Stock in any voting trust or subject any Common Stock to any arrangement or agreement with respect to the voting of any Common Stock, without limitationother than any such voting trust, arrangement or agreement solely among the members of Starboard and otherwise in accordance with this Agreement;
(iv) seek, or encourage any person or entity, to submit nominations in furtherance of a “contested solicitation solicitation” for the election or removal of directors with respect to the Company)Company or seek, encourage or take any other than solicitations action with respect to the election or acting removal of any directors; provided, however, that nothing in this Agreement shall prevent Starboard or its Affiliates or Associates from taking actions in furtherance of identifying director candidates in connection with the 2017 Annual Meeting so long as such actions do not create a participant public disclosure obligation for Starboard or the Company and are not publicly disclosed by Starboard or its representatives or affiliates and are undertaken on a basis reasonably designed to be confidential and in support accordance in all material respects with Starboard’s normal practices in the circumstances;
(A) make any proposal for consideration by stockholders at any annual or special meeting of all stockholders of the Company’s nominees [including, (B) make any offer or proposal (with or without limitationconditions) with respect to any merger, acquisition, recapitalization, restructuring, disposition or other business combination involving Starboard and the nominees of Company, (C) affirmatively solicit a third party, on an unsolicited basis, to make an offer or proposal (with or without conditions) with respect to any merger, acquisition, recapitalization, restructuring, disposition or other business combination involving the Block Sale Transferee pursuant to Article 5]3;
Company, or publicly encourage, initiate or support any third party in making such an offer or proposal, (bD) formpublicly comment on any third party proposal regarding any merger, join in acquisition, recapitalization, restructuring, disposition, or in any way participate in a group (for the avoidance of doubt, the Block Sale Transferee shall not be deemed to have formed, joined in or in any way participated in a group with the Company as a result of the Block Sale Transferee’s execution of this Agreement) other business combination with respect to the Company Common Shares by such third party prior to such proposal becoming public or (E) call or other equity securities of the Company) or deposit any Company Common Shares (or other equity securities of the Company) in a voting trust or similar arrangement or subject any Company Common Shares (or other equity securities of the Company) to any voting agreement or similar arrangement, or grant any proxy with respect to any Company Common Shares (or other equity securities of the Company) (other than to a designated representative of the 1 Note to form: bracketed language to be removed if Block Sale Transferee does not accept the board nomination rights. 2 Note to form: bracketed language to be removed if Block Sale Transferee does not accept the board nomination rights. 3 Note to form: bracketed language to be removed if Block Sale Transferee does not accept the board nomination rights. Company pursuant to a proxy statement of the Company), other than as contemplated by the Governance Agreement or the Stockholders Agreement or the transactions contemplated thereby;
(c) seek to call, or to request the calling of, or call a special meeting of the stockholders of the Company, or seek to make, or make, a stockholder proposal (whether pursuant to Rule 14a-8 under the Exchange Act or otherwise) at any meeting of the stockholders of the Company, or make a request for a list of the Company’s stockholders, or[, other than pursuant to the Block Sale Transferee’s nomination rights in accordance with Article 5 of this Agreement,]4 seek election of a representative to the Board of Directors, seek to place a representative on the Board of Directors or seek the removal of any director from the Board of Directors, or otherwise acting alone, or by participating in a group, seek to control or influence the governance or policies of the Company;
(dvi) effect seek, alone or in concert with others, representation on the Board, except as specifically permitted in Section 1;
(vii) seek to effect (includingadvise, without limitationencourage, by entering into support or influence any discussions, negotiations, agreements person or understandings whether entity with respect to the voting or not legally enforceable with any third Person), offer or propose (whether publicly or otherwise) to effect, or cause or participate in, or in any way assist or facilitate any other Person to effect or seek, offer or propose (whether publicly or otherwise) to effect or participate in any acquisition disposition of any Company Common Shares (or other equity securities of the Company) (Company at any annual or Beneficial Ownership thereof) in excess special meeting of the Ownership Limitationstockholders, except in accordance with Section 2.11; providedor
(viii) make any request or submit any proposal to amend the terms of this Agreement other than through non-public communications with the Company that would not be reasonably determined to trigger public disclosure obligations for any Party.
(b) Except as expressly provided in Section 1 or Section 2(a), thatStarboard shall be entitled to (i) vote its shares on any other proposal duly brought before the 2016 Annual Meeting or otherwise vote as Starboard determines in its sole discretion and (ii) disclose, for the avoidance of doubtpublicly or otherwise, the Block Sale Transferee is permitted how it intends to Transfer vote or act with respect to an unaffiliated third party any Company Common Shares (or other equity securities of the Company) Beneficially Owned , any stockholder proposal or other matter to be voted on by the Block Sale Transfereestockholders of the Company and the reasons therefor (in each case, subject to the provisions of Article 8 hereof, if applicable;Section 1(f)(iii)).
(e) effect or seek to effect (including, without limitation, by entering into any discussions, negotiations, agreements or understandings whether or not legally enforceable with any third Person), offer or propose (whether publicly or otherwise) to effect, or cause or participate in, or in any way assist or facilitate any other Person to effect or seek, offer or propose (whether publicly or otherwise) to effect or participate in (i) any tender offer or exchange offer, merger, acquisition, share exchange or other business combination involving the Company or any of its Subsidiaries, (ii) any recapitalization, restructuring, liquidation, dissolution or other extraordinary transaction with respect to the Company or any of its Subsidiaries or any material portion of its or their businesses, or (iii) any acquisition of any material assets or businesses of the Company or any of its Subsidiaries;
(f) publicly disclose, or cause or, in a material manner, facilitate the public disclosure (including without limitation through the filing by it of any document or report with the SEC or any other governmental agency or any disclosure to any 4 Note to form: bracketed language to be removed if Block Sale Transferee does not accept the board nomination rights. journalist, member of the media or securities analyst) of any intent, purpose, plan or proposal to obtain any waiver, or consent under, or any amendment of, any of the provisions of Section 2.1, this Section 3.1, or Article 4 (except as described in Section 4.1) or bring any action to (i) contest the validity of Section 2.1, this Section 3.1 or Article 4, or (ii) seek a release from the restrictions contained in Section 2.1, this Section 3.1 or Article 4;
(g) unless required by law, make or issue or cause to be made or issued any public disclosure, announcement or statement (including without limitation the filing of any document or report with the SEC or any other governmental agency or any disclosure to any journalist, member of the media or securities analyst) (i) in support of any solicitation described in paragraph (a) above (other than solicitations by the Company), (ii) in support of any matter described in paragraph (c) above, (iii) concerning any potential matter described Nothing in paragraph (d) above; (iv) concerning any potential matter described in paragraph (e) above; or (v) negatively commenting upon the Company’s corporate strategy, business, corporate activities, board of directors or management (for the avoidance of doubt, making any factual statement about the Company’s corporate strategy, business, corporate activities, board of directors or management shall not be prohibited by this Section 3.1(g)(v)); or
(h) enter into any discussions, negotiations, agreements or understandings with any Person with respect to any of the foregoing or advise, assist or seek to persuade others to take any action with respect to any of the foregoing. Notwithstanding the foregoing, (a) [the restrictions in Sections 3.1(d), 3.1(e), 3.1(f), 3.1(g)(iii), 3.1(g)(iv), 3.1(g)(v) and 3.1(h) (to the extent it relates to any of the foregoing2(a) shall not apply at any time that (i) be deemed to limit the Company fails to comply exercise in all material respects with its obligations under Article 5 hereof, which failure continues unremedied for good faith by a period New Appointee of 10 business days following receipt by the Company of a written notice from the Block Sale Transferee of such failure his or (ii) the Block Sale Transferee has relinquished its nomination rights pursuant to Article 5 and all Block Sale Transferee nominated directors have resigned; her fiduciary duties solely in his or (b)]5 in the event that (x) the Board of Directors determines that the Company should engage in any transaction described in Section 3.1(e)(i) or 3.1(e)(ii), the Block Sale Transferee shall be permitted to participate in such Board of Directors’ approved transaction her capacity as a shareholder on the same terms and conditions as any other shareholder director of the Company, (y) the Board of Directors determines that the Company should solicit from one or more Persons or enter into discussions with one or more Persons regarding, or invites any other Person or group to make a proposal (without similarly inviting the Block Sale Transferee to make a similar proposal) with respect to an acquisition of (i) all or substantially all of the equity securities or assets of the Company or any of its Subsidiaries (by merger, tender offer or otherwise) or (ii) any material assets or businesses of the Company or any of its Subsidiaries, the Block Sale Transferee shall have the right to make a non-public competing proposal to the Board of Directors in compliance with any written procedures generally applicable to Persons making proposals provided by the Company 5 Note to form: enumerated restrictions to be removed if the Block Sale Transferee does not accept the board nomination rights. or the Board of Directors or (z) any third party that is not an Affiliate of the Block Sale Transferee makes a bona fide offer or proposal, with respect to a matter described in Section 3.1(d) or 3.1(e) above (a “Third Party Proposal”), the Block Sale Transferee (A) shall have the right to make a non-public competing proposal to the Board of Directors and may publicly announce that it has made a competing proposal to the Board of Directors so long as such public announcement does not constitute an offer or a solicitation to any recipient thereof and (B) may tender, exchange or otherwise sell or transfer its Company Common Shares (or other equity securities of the Company) to such third party in accordance with the Third Party Proposal; provided, however, that in the case of clauses (y) and (z), the Block Sale Transferee shall be prohibited from participating with, joining in a group with or providing financing to any such third party). [For the avoidance of doubt, any discussions involving the directors nominated by the Block Sale Transferee pursuant to Article 5 hereof (i) at a meeting of the Board of Directors or (ii) with management of the Company, other members of the Board of Directors or any of the Company’s advisors or representatives, in the case of clauses (i) and (ii), while acting in such directors’ capacity as members of the Board of Directors, shall not be deemed to violate any of the provisions of this Article 3.]6.
Appears in 2 contracts
Samples: Nomination and Standstill Agreement (Starboard Value LP), Nomination and Standstill Agreement (Brinks Co)
Standstill Provisions. During (a) Starboard agrees that, from the date of this Agreement until the earlier of (x) the date that is thirty (30) business days prior to the deadline for the submission of stockholder nominations for the 2019 Annual Meeting (which, for the avoidance of doubt, shall be the first annual meeting of stockholders at which directors are elected following the Next Annual Meeting) pursuant to the Bylaws or (y) the date that is ninety (90) days prior to the first anniversary of the Next Annual Meeting (the “Standstill Period”), unless expressly authorized in writing to do so by a majority neither it nor any of the members of the Board of Directors, acting through a committee of directors that qualify as “independent directors” as defined by applicable stock exchange listing rules [(which term, for this purpose, will exclude any directors nominated by the Block Sale Transferee)]1, the Block Sale Transferee shall notits Affiliates or Associates under its control will, and shall it will cause each of its Affiliates and Associates under its control not to, directly or indirectly, acting alone or as part of a groupin any manner:
i. engage in any solicitation of proxies or consents or become a “participant” in a “solicitation” (aas such terms are defined in Regulation 14A under the Exchange Act) makeof proxies or consents (including, without limitation, any solicitation of consents that seeks to call a special meeting of stockholders), in each case, with respect to securities of the Company;
ii. form, join or in any way participate in any solicitation “group” (within the meaning of any proxy [(but without regard to the exclusion set forth in Rule 14a-1(l)(2)(ivSection 13(d)(3) under of the Exchange Act from the definition of “solicitation”)]2 to vote any Company Common Shares (or other equity securities of the CompanyAct) with respect to the Common Stock (other than a “group” that includes all or some of the entities or persons identified on Exhibit B, but does not include any matter (includingother entities or persons not identified on Exhibit B as of the date hereof); provided, without limitationhowever, that nothing herein shall limit the ability of an Affiliate of Starboard to join the “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;
iii. deposit any Common Stock in any voting trust or subject any Common Stock to any arrangement or agreement with respect to the voting of any Common Stock, other than any such voting trust, arrangement or agreement solely among the members of Starboard and otherwise in accordance with this Agreement; iv. seek, or encourage any person or entity, to submit nominations in furtherance of a “contested solicitation solicitation” for the election or removal of directors with respect to the Company)Company or seek, encourage or take any other than solicitations or acting as a participant in support of all of the Company’s nominees [including, without limitation, the nominees of the Block Sale Transferee pursuant to Article 5]3;
(b) form, join in or in any way participate in a group (for the avoidance of doubt, the Block Sale Transferee shall not be deemed to have formed, joined in or in any way participated in a group with the Company as a result of the Block Sale Transferee’s execution of this Agreement) action with respect to the election or removal of any directors; provided, however, that nothing in this Agreement shall prevent Starboard or its Affiliates or Associates from taking actions in furtherance of identifying director candidates in connection with the 2019 Annual Meeting so long as such actions do not create a public disclosure obligation for Starboard or the Company Common Shares (or other equity securities of the Company) or deposit any Company Common Shares (or other equity securities of the Company) in and are undertaken on a voting trust or similar arrangement or subject any Company Common Shares (or other equity securities of the Company) to any voting agreement or similar arrangement, or grant any proxy with respect to any Company Common Shares (or other equity securities of the Company) (other than to a designated representative of the 1 Note to form: bracketed language basis reasonably designed to be removed if Block Sale Transferee does not accept confidential and in accordance in all material respects with Starboard’s normal practices in the board nomination rights. 2 Note to form: bracketed language to be removed if Block Sale Transferee does not accept the board nomination rights. 3 Note to form: bracketed language to be removed if Block Sale Transferee does not accept the board nomination rights. Company pursuant to a proxy statement of the Company), other than as contemplated by the Governance Agreement or the Stockholders Agreement or the transactions contemplated therebycircumstances;
(cA) seek to call, make any proposal for consideration by stockholders at any annual or to request the calling of, or call a special meeting of the stockholders of the Company, (B) make any offer or seek to make, or make, a stockholder proposal (whether pursuant with or without conditions) with respect to Rule 14a-8 under the Exchange Act or otherwise) at any meeting of the stockholders of the Company, or make a request for a list of the Company’s stockholders, or[, other than pursuant to the Block Sale Transferee’s nomination rights in accordance with Article 5 of this Agreement,]4 seek election of a representative to the Board of Directors, seek to place a representative on the Board of Directors or seek the removal of any director from the Board of Directors, or otherwise acting alone, or by participating in a group, seek to control or influence the governance or policies of the Company;
(d) effect or seek to effect (including, without limitation, by entering into any discussions, negotiations, agreements or understandings whether or not legally enforceable with any third Person), offer or propose (whether publicly or otherwise) to effect, or cause or participate in, or in any way assist or facilitate any other Person to effect or seek, offer or propose (whether publicly or otherwise) to effect or participate in any acquisition of any Company Common Shares (or other equity securities of the Company) (or Beneficial Ownership thereof) in excess of the Ownership Limitation, except in accordance with Section 2.1; provided, that, for the avoidance of doubt, the Block Sale Transferee is permitted to Transfer to an unaffiliated third party any Company Common Shares (or other equity securities of the Company) Beneficially Owned by the Block Sale Transferee, subject to the provisions of Article 8 hereof, if applicable;
(e) effect or seek to effect (including, without limitation, by entering into any discussions, negotiations, agreements or understandings whether or not legally enforceable with any third Person), offer or propose (whether publicly or otherwise) to effect, or cause or participate in, or in any way assist or facilitate any other Person to effect or seek, offer or propose (whether publicly or otherwise) to effect or participate in (i) any tender offer or exchange offer, merger, acquisition, share exchange recapitalization, restructuring, disposition or other business combination involving Starboard and the Company, (C) affirmatively solicit a third party to make an offer or proposal (with or without conditions) with respect to any merger, acquisition, recapitalization, restructuring, disposition or other business combination involving the Company Company, or publicly encourage, initiate or support any of its Subsidiariesthird party in making such an offer or proposal, (iiD) publicly comment on any third party proposal regarding any merger, acquisition, recapitalization, restructuring, liquidationdisposition, dissolution or other extraordinary transaction business combination with respect to the Company or any of its Subsidiaries or any material portion of its or their businesses, by such third party prior to such proposal becoming public or (iiiE) any acquisition of any material assets or businesses of the Company or any of its Subsidiaries;
(f) publicly disclose, or cause or, in a material manner, facilitate the public disclosure (including without limitation through the filing by it of any document or report with the SEC or any other governmental agency or any disclosure to any 4 Note to form: bracketed language to be removed if Block Sale Transferee does not accept the board nomination rights. journalist, member of the media or securities analyst) of any intent, purpose, plan or proposal to obtain any waiver, or consent under, or any amendment of, any of the provisions of Section 2.1, this Section 3.1, or Article 4 (except as described in Section 4.1) or bring any action to (i) contest the validity of Section 2.1, this Section 3.1 or Article 4, or (ii) seek a release from the restrictions contained in Section 2.1, this Section 3.1 or Article 4;
(g) unless required by law, make or issue or cause to be made or issued any public disclosure, announcement or statement (including without limitation the filing of any document or report with the SEC or any other governmental agency or any disclosure to any journalist, member of the media or securities analyst) (i) in support of any solicitation described in paragraph (a) above (other than solicitations by the Company), (ii) in support of any matter described in paragraph (c) above, (iii) concerning any potential matter described in paragraph (d) above; (iv) concerning any potential matter described in paragraph (e) above; or (v) negatively commenting upon the Company’s corporate strategy, business, corporate activities, board of directors or management (for the avoidance of doubt, making any factual statement about the Company’s corporate strategy, business, corporate activities, board of directors or management shall not be prohibited by this Section 3.1(g)(v)); or
(h) enter into any discussions, negotiations, agreements or understandings with any Person with respect to any of the foregoing or advise, assist call or seek to persuade others to take any action with respect to any of the foregoing. Notwithstanding the foregoing, (a) [the restrictions in Sections 3.1(d), 3.1(e), 3.1(f), 3.1(g)(iii), 3.1(g)(iv), 3.1(g)(v) and 3.1(h) (to the extent it relates to any of the foregoing) shall not apply at any time that (i) the Company fails to comply in all material respects with its obligations under Article 5 hereof, which failure continues unremedied for call a period of 10 business days following receipt by the Company of a written notice from the Block Sale Transferee of such failure or (ii) the Block Sale Transferee has relinquished its nomination rights pursuant to Article 5 and all Block Sale Transferee nominated directors have resigned; or (b)]5 in the event that (x) the Board of Directors determines that the Company should engage in any transaction described in Section 3.1(e)(i) or 3.1(e)(ii), the Block Sale Transferee shall be permitted to participate in such Board of Directors’ approved transaction as a shareholder on the same terms and conditions as any other shareholder of the Company, (y) the Board of Directors determines that the Company should solicit from one or more Persons or enter into discussions with one or more Persons regarding, or invites any other Person or group to make a proposal (without similarly inviting the Block Sale Transferee to make a similar proposal) with respect to an acquisition of (i) all or substantially all of the equity securities or assets of the Company or any of its Subsidiaries (by merger, tender offer or otherwise) or (ii) any material assets or businesses of the Company or any of its Subsidiaries, the Block Sale Transferee shall have the right to make a non-public competing proposal to the Board of Directors in compliance with any written procedures generally applicable to Persons making proposals provided by the Company 5 Note to form: enumerated restrictions to be removed if the Block Sale Transferee does not accept the board nomination rights. or the Board of Directors or (z) any third party that is not an Affiliate of the Block Sale Transferee makes a bona fide offer or proposal, with respect to a matter described in Section 3.1(d) or 3.1(e) above (a “Third Party Proposal”), the Block Sale Transferee (A) shall have the right to make a non-public competing proposal to the Board of Directors and may publicly announce that it has made a competing proposal to the Board of Directors so long as such public announcement does not constitute an offer or a solicitation to any recipient thereof and (B) may tender, exchange or otherwise sell or transfer its Company Common Shares (or other equity securities of the Company) to such third party in accordance with the Third Party Proposal; provided, however, that in the case of clauses (y) and (z), the Block Sale Transferee shall be prohibited from participating with, joining in a group with or providing financing to any such third party). [For the avoidance of doubt, any discussions involving the directors nominated by the Block Sale Transferee pursuant to Article 5 hereof (i) at a special meeting of the Board of Directors or (ii) with management of the Company, other members of the Board of Directors or any of the Company’s advisors or representatives, in the case of clauses (i) and (ii), while acting in such directors’ capacity as members of the Board of Directors, shall not be deemed to violate any of the provisions of this Article 3.]6stockholders;
Appears in 2 contracts
Samples: Agreement (Starboard Value LP), Shareholder Agreement (Comscore, Inc.)
Standstill Provisions. During any period commencing on the date of this Agreement that the Stockholder and its Affiliates and Associates collectively Beneficially Own in excess of 9.7% (adjusted to reflect any future acquisition of any Common Shares by the Company, any combination or reverse split or similar action by the Company which, by reducing the number of shares outstanding, increases the proportionate number of shares Beneficially Owned by the Stockholder so long as the Stockholder and its Affiliates and Associates do not acquire an additional share of Common Stock after any such event) of the then outstanding Common Shares (the “Standstill Period”), unless expressly authorized in writing except pursuant to do so a negotiated transaction with the Stockholder approved by a majority the board of directors of the members Company (the “Board”), none of the Board of DirectorsPersons comprising the Stockholder will, acting through a committee of directors that qualify as “independent directors” as defined by applicable stock exchange listing rules [(which term, for this purpose, will exclude in any directors nominated by the Block Sale Transferee)]1, the Block Sale Transferee shall not, and shall cause its Affiliates not tomanner, directly or indirectly, acting alone or as part of a group:
(a) make, effect, initiate, cause or in any way participate in (i) any solicitation acquisition of Beneficial Ownership of any proxy [securities of the Company or any securities of any Subsidiary or other Affiliate or Associate of the Company if such acquisition would result in the Stockholder and its Affiliates and Associates collectively Beneficially Owning fifteen percent 15% or more of the then outstanding Common Shares other than the Additional Shares and then only in respect of such transaction and no other further purchase, (but without regard to the exclusion set forth ii) any Company Acquisition Transaction, or (iii) any “solicitation” of “proxies” (as those terms are defined in Rule 14a-1(l)(2)(iv) 14a-1 of the General Rules and Regulations under the Exchange Act from the definition of “solicitation”)]2 Act) or consents with respect to vote any Company Common Shares (or other equity securities of the Company) with respect to any matter (including, without limitation, any contested solicitation for the election of directors with respect to the Company), other than solicitations or acting as a participant in support of all of the Company’s nominees [including, without limitation, the nominees of the Block Sale Transferee pursuant to Article 5]3;
(b) form, join in or in any way participate in a group (for the avoidance of doubt, the Block Sale Transferee shall not be deemed to have formed, joined in or in any way participated in a group with the Company as a result of the Block Sale Transferee’s execution of this Agreement) with respect to the Company Common Shares (or other equity securities of the Company) or deposit any Company Common Shares (or other equity securities of the Company) in a voting trust or similar arrangement or subject any Company Common Shares (or other equity securities of the Company) to any voting agreement or similar arrangement, or grant any proxy with respect to any Company Common Shares (or other equity securities of the Company) (other than to a designated representative of the 1 Note to form: bracketed language to be removed if Block Sale Transferee does not accept the board nomination rights. 2 Note to form: bracketed language to be removed if Block Sale Transferee does not accept the board nomination rights. 3 Note to form: bracketed language to be removed if Block Sale Transferee does not accept the board nomination rights. Company pursuant to a proxy statement of the Company), other than as contemplated by the Governance Agreement or the Stockholders Agreement or the transactions contemplated thereby;
(c) seek to call, or to request the calling of, or call a special meeting of the stockholders of the Company, nominate or seek to make, or make, a stockholder proposal (whether pursuant to Rule 14a-8 under the Exchange Act or otherwise) at nominate any meeting of the stockholders of the Company, or make a request for a list of the Company’s stockholders, or[, other than pursuant to the Block Sale Transferee’s nomination rights in accordance with Article 5 of this Agreement,]4 seek election of a representative person to the Board of Directors, seek to place a representative on the Board of Directors or seek the removal of any director from the Board of Directors, or otherwise acting aloneact, alone or by participating in a groupconcert with others, to seek to control or influence the governance management, Board or policies of the Company;
(c) take any action which might force the Company to make a public announcement regarding any of the types of matters set forth in subsection (a) of this Section 2.1;
(d) effect request or seek to effect propose that the Company (includingor its directors, without limitationofficers, by entering into any discussions, negotiations, agreements employees or understandings whether or not legally enforceable with any third Personagents), offer directly or propose (whether publicly indirectly, amend or otherwise) to effect, or cause or participate in, or in waive any way assist or facilitate any other Person to effect or seek, offer or propose (whether publicly or otherwise) to effect or participate in any acquisition provision of any Company Common Shares (or other equity securities of the Company) (or Beneficial Ownership thereof) in excess of the Ownership Limitation, except in accordance with this Section 2.1; provided, that, for the avoidance of doubt, the Block Sale Transferee is permitted to Transfer to an unaffiliated third party any Company Common Shares including this subsection (or other equity securities of the Company) Beneficially Owned by the Block Sale Transferee, subject to the provisions of Article 8 hereof, if applicabled);
(e) effect agree or seek offer to effect (includingtake, without limitation, by entering into any discussions, negotiations, agreements or understandings whether or not legally enforceable with any third Person), offer encourage or propose (whether publicly or otherwise) the taking of, any action referred to effect, or cause or participate in, or in any way assist or facilitate any other Person to effect or seek, offer or propose subsections (whether publicly or otherwise) to effect or participate in (i) any tender offer or exchange offer, merger, acquisition, share exchange or other business combination involving the Company or any of its Subsidiariesa), (iib), (c) any recapitalization, restructuring, liquidation, dissolution or other extraordinary transaction with respect to the Company or any of its Subsidiaries or any material portion of its or their businesses, or (iiid) any acquisition of any material assets or businesses of the Company or any of its Subsidiariesthis Section 2.1;
(f) publicly discloseassist, induce or cause or, in a material manner, facilitate the public disclosure (including without limitation through the filing by it of any document or report with the SEC or encourage any other governmental agency Person to take any action referred to in subsections (a), (b), (c) or any disclosure to any 4 Note to form: bracketed language to be removed if Block Sale Transferee does not accept the board nomination rights. journalist, member of the media or securities analyst(d) of any intent, purpose, plan or proposal to obtain any waiver, or consent under, or any amendment of, any of the provisions of this Section 2.1, this Section 3.1, or Article 4 (except as described in Section 4.1) or bring any action to (i) contest the validity of Section 2.1, this Section 3.1 or Article 4, or (ii) seek a release from the restrictions contained in Section 2.1, this Section 3.1 or Article 4;; or
(g) unless required by law, make enter into any discussions or issue or cause arrangements with any third party with respect to be made or issued any public disclosure, announcement or statement (including without limitation the filing taking of any document or report with the SEC or any other governmental agency or any disclosure action referred to any journalist, member of the media or securities analyst) (i) in support of any solicitation described in paragraph subsections (a) above (other than solicitations by the Company), (ii) in support of any matter described in paragraph b), (c) above, (iii) concerning any potential matter described in paragraph or (d) above; (iv) concerning any potential matter described in paragraph (e) above; or (v) negatively commenting upon the Company’s corporate strategy, business, corporate activities, board of directors or management (for the avoidance of doubt, making any factual statement about the Company’s corporate strategy, business, corporate activities, board of directors or management shall not be prohibited by this Section 3.1(g)(v)); or
(h) enter into any discussions, negotiations, agreements or understandings with any Person with respect to any of the foregoing or advise, assist or seek to persuade others to take any action with respect to any of the foregoing. Notwithstanding the foregoing, (a) [the restrictions in Sections 3.1(d), 3.1(e), 3.1(f), 3.1(g)(iii), 3.1(g)(iv), 3.1(g)(v) and 3.1(h) (to the extent it relates to any of the foregoing) shall not apply at any time that (i) the Company fails to comply in all material respects with its obligations under Article 5 hereof, which failure continues unremedied for a period of 10 business days following receipt by the Company of a written notice from the Block Sale Transferee of such failure or (ii) the Block Sale Transferee has relinquished its nomination rights pursuant to Article 5 and all Block Sale Transferee nominated directors have resigned; or (b)]5 in the event that (x) the Board of Directors determines that the Company should engage in any transaction described in Section 3.1(e)(i) or 3.1(e)(ii), the Block Sale Transferee shall be permitted to participate in such Board of Directors’ approved transaction as a shareholder on the same terms and conditions as any other shareholder of the Company, (y) the Board of Directors determines that the Company should solicit from one or more Persons or enter into discussions with one or more Persons regarding, or invites any other Person or group to make a proposal (without similarly inviting the Block Sale Transferee to make a similar proposal) with respect to an acquisition of (i) all or substantially all of the equity securities or assets of the Company or any of its Subsidiaries (by merger, tender offer or otherwise) or (ii) any material assets or businesses of the Company or any of its Subsidiaries, the Block Sale Transferee shall have the right to make a non-public competing proposal to the Board of Directors in compliance with any written procedures generally applicable to Persons making proposals provided by the Company 5 Note to form: enumerated restrictions to be removed if the Block Sale Transferee does not accept the board nomination rights. or the Board of Directors or (z) any third party that is not an Affiliate of the Block Sale Transferee makes a bona fide offer or proposal, with respect to a matter described in Section 3.1(d) or 3.1(e) above (a “Third Party Proposal”), the Block Sale Transferee (A) shall have the right to make a non-public competing proposal to the Board of Directors and may publicly announce that it has made a competing proposal to the Board of Directors so long as such public announcement does not constitute an offer or a solicitation to any recipient thereof and (B) may tender, exchange or otherwise sell or transfer its Company Common Shares (or other equity securities of the Company) to such third party in accordance with the Third Party Proposal; provided, however, that in the case of clauses (y) and (z), the Block Sale Transferee shall be prohibited from participating with, joining in a group with or providing financing to any such third party). [For the avoidance of doubt, any discussions involving the directors nominated by the Block Sale Transferee pursuant to Article 5 hereof (i) at a meeting of the Board of Directors or (ii) with management of the Company, other members of the Board of Directors or any of the Company’s advisors or representatives, in the case of clauses (i) and (ii), while acting in such directors’ capacity as members of the Board of Directors, shall not be deemed to violate any of the provisions of this Article 3.]62.1.
Appears in 2 contracts
Samples: Standstill Agreement, Standstill Agreement (Autobytel Inc)
Standstill Provisions. During (a) Starboard agrees that, from the date of this Agreement until the earlier of (x) the date that is fifteen (15) business days prior to the deadline for the submission of shareholder nominations for the 2025 Annual Meeting pursuant to the Company’s By-Law No. 5 and (y) the date that is seventy-five (75) days prior to the first anniversary of the 2024 Annual Meeting (the “Standstill Period”), unless expressly authorized in writing to do so by a majority of the members of the Board of Directors, acting through a committee of directors that qualify as “independent directors” as defined by applicable stock exchange listing rules [(which term, for this purpose, will exclude any directors nominated by the Block Sale Transferee)]1, the Block Sale Transferee Starboard shall not, and shall cause each of its controlled Affiliates and Associates not to, in each case directly or indirectly, acting alone or as part of a groupin any manner:
(ai) makeengage in any solicitation of proxies or consents or become a “participant” in a “solicitation” (as such terms are defined in Regulation 14A under the Exchange Act or as the term “solicitation” is defined in the Canada Business Corporations Act) of proxies or consents (including, without limitation, any solicitation of consents that seeks to call a special meeting of shareholders of the Company), in each case, with respect to any securities of the Company;
(ii) form, join or in any way participate in any solicitation “group” (within the meaning of any proxy [(but without regard to the exclusion set forth in Rule 14a-1(l)(2)(ivSection 13(d)(3) under of the Exchange Act from the definition of “solicitation”)]2 to vote and any Company Common Shares (or other equity applicable Canadian securities of the Companylaws) with respect to Common Shares (other than a “group” that includes all or some of the members of Starboard, but does not include any matter other entities or persons that are not members of Starboard as of the date hereof); provided, however, that nothing herein shall limit the ability of an Affiliate of Starboard to join the “group” following the execution of this Agreement, so long as any such Affiliate agrees in writing to be bound by the terms and conditions of this Agreement;
(includingiii) deposit any Common Shares in any voting trust or subject any Common Shares to any arrangement or agreement with respect to the voting of any Common Shares, without limitationother than any such voting trust, arrangement or agreement solely among the members of Starboard and otherwise in accordance with this Agreement;
(iv) seek or submit, or knowingly encourage any person or entity to seek or submit, nominations in furtherance of a contested solicitation for the appointment, election or removal of directors with respect to the Company)Company or seek, knowingly encourage or take any other than solicitations action with respect to the appointment, election or acting as a participant removal of any directors, in support of all each case in opposition to the recommendation of the Board; provided, however, that nothing in this Agreement shall prevent Starboard or any of its Affiliates or Associates from taking actions in furtherance of identifying director candidates in connection with the 2025 Annual Meeting, so long as such actions do not create a public disclosure obligation for Starboard or the Company, are not publicly disclosed by Starboard or its Affiliates or Associates and are undertaken on a basis reasonably designed to be confidential and in accordance in all material respects with Starboard’s nominees [including, without limitation, normal practices in the nominees of the Block Sale Transferee pursuant to Article 5]3circumstances;
(bA) form, join in make any proposal for consideration by shareholders at any annual or in any way participate in a group (for the avoidance special meeting of doubt, the Block Sale Transferee shall not be deemed to have formed, joined in or in any way participated in a group with shareholders of the Company as a result or through any written resolution of the Block Sale Transferee’s execution of this Agreementshareholders, (B) make any offer or proposal (with or without conditions) with respect to the Company Common Shares any merger, amalgamation, take-over bid, arrangement, tender (or other equity securities of the Companyexchange) or deposit any Company Common Shares (or other equity securities of the Company) in a voting trust or similar arrangement or subject any Company Common Shares (or other equity securities of the Company) to any voting agreement or similar arrangement, or grant any proxy with respect to any Company Common Shares (or other equity securities of the Company) (other than to a designated representative of the 1 Note to form: bracketed language to be removed if Block Sale Transferee does not accept the board nomination rights. 2 Note to form: bracketed language to be removed if Block Sale Transferee does not accept the board nomination rights. 3 Note to form: bracketed language to be removed if Block Sale Transferee does not accept the board nomination rights. Company pursuant to a proxy statement of the Company), other than as contemplated by the Governance Agreement or the Stockholders Agreement or the transactions contemplated thereby;
(c) seek to call, or to request the calling of, or call a special meeting of the stockholders of the Company, or seek to make, or make, a stockholder proposal (whether pursuant to Rule 14a-8 under the Exchange Act or otherwise) at any meeting of the stockholders of the Company, or make a request for a list of the Company’s stockholders, or[, other than pursuant to the Block Sale Transferee’s nomination rights in accordance with Article 5 of this Agreement,]4 seek election of a representative to the Board of Directors, seek to place a representative on the Board of Directors or seek the removal of any director from the Board of Directors, or otherwise acting alone, or by participating in a group, seek to control or influence the governance or policies of the Company;
(d) effect or seek to effect (including, without limitation, by entering into any discussions, negotiations, agreements or understandings whether or not legally enforceable with any third Person), offer or propose (whether publicly or otherwise) to effect, or cause or participate in, or in any way assist or facilitate any other Person to effect or seek, offer or propose (whether publicly or otherwise) to effect or participate in any acquisition of any Company Common Shares (or other equity securities of the Company) (or Beneficial Ownership thereof) in excess of the Ownership Limitation, except in accordance with Section 2.1; provided, that, for the avoidance of doubt, the Block Sale Transferee is permitted to Transfer to an unaffiliated third party any Company Common Shares (or other equity securities of the Company) Beneficially Owned by the Block Sale Transferee, subject to the provisions of Article 8 hereof, if applicable;
(e) effect or seek to effect (including, without limitation, by entering into any discussions, negotiations, agreements or understandings whether or not legally enforceable with any third Person), offer or propose (whether publicly or otherwise) to effect, or cause or participate in, or in any way assist or facilitate any other Person to effect or seek, offer or propose (whether publicly or otherwise) to effect or participate in (i) any tender offer or exchange offer, merger, acquisition, share exchange recapitalization, restructuring, disposition or other business combination involving the Company or any of its Subsidiariessubsidiaries, (iiC) affirmatively solicit a third party to make an offer or proposal (with or without conditions) with respect to any merger, amalgamation, take-over bid, arrangement, tender (or exchange) offer, acquisition, recapitalization, restructuring, liquidation, dissolution disposition or other extraordinary transaction business combination involving the Company or any of its subsidiaries, or publicly encourage, initiate or support any third party in making such an offer or proposal, (D) publicly comment on any third party proposal regarding any merger, amalgamation, take-over bid, arrangement, tender (or exchange) offer, acquisition, recapitalization, restructuring, disposition, or other business combination with respect to the Company or any of its Subsidiaries or any material portion of its or their businesses, subsidiaries by such third party prior to such proposal becoming public or (iiiE) requisition or seek to requisition a special meeting of shareholders or act by written resolution;
(vi) seek, alone or in concert with others, representation on the Board, except as specifically permitted in Section 1;
(vii) advise, knowingly encourage, knowingly support or knowingly influence any acquisition person or entity with respect to the voting or disposition of any material assets or businesses securities of the Company at any annual or special meeting of shareholders or in connection with any of its Subsidiaries;written resolution, except in accordance with Section 1; or
(fviii) publicly disclose, make any request or cause or, in a material manner, facilitate submit any proposal to amend the terms of this Agreement other than through non-public communications with the Company or the Board that would not be reasonably determined to trigger public disclosure obligations for any Party.
(including without limitation through the filing by it of any document or report with the SEC or any other governmental agency or any disclosure to any 4 Note to form: bracketed language to be removed if Block Sale Transferee does not accept the board nomination rights. journalist, member of the media or securities analystb) of any intent, purpose, plan or proposal to obtain any waiver, or consent under, or any amendment of, any of the provisions of Section 2.1, this Section 3.1, or Article 4 (except Except as described expressly provided in Section 4.1) 1 or bring any action Section 2(a), Starboard shall be entitled to (i) contest vote the validity of Section 2.1, this Section 3.1 or Article 4, or Common Shares that it beneficially owns as it determines in its sole discretion and (ii) seek a release from the restrictions contained in Section 2.1disclose, this Section 3.1 publicly or Article 4;
(g) unless required by lawotherwise, make how it intends to vote or issue or cause to be made or issued any public disclosure, announcement or statement (including without limitation the filing of any document or report with the SEC or any other governmental agency or any disclosure to any journalist, member of the media or securities analyst) (i) in support of any solicitation described in paragraph (a) above (other than solicitations by the Company), (ii) in support of any matter described in paragraph (c) above, (iii) concerning any potential matter described in paragraph (d) above; (iv) concerning any potential matter described in paragraph (e) above; or (v) negatively commenting upon the Company’s corporate strategy, business, corporate activities, board of directors or management (for the avoidance of doubt, making any factual statement about the Company’s corporate strategy, business, corporate activities, board of directors or management shall not be prohibited by this Section 3.1(g)(v)); or
(h) enter into any discussions, negotiations, agreements or understandings with any Person act with respect to any securities of the foregoing Company on any shareholder proposal or advise, assist or seek other matter to persuade others to take any action with respect to any be voted on by the shareholders of the foregoing. Notwithstanding Company and the foregoingreasons therefor (in each case, subject to Section 12).
(ac) [Nothing in Section 2(a) or elsewhere in this Agreement shall be deemed to limit the restrictions exercise in Sections 3.1(d), 3.1(e), 3.1(f), 3.1(g)(iii), 3.1(g)(iv), 3.1(g)(v) and 3.1(h) (to the extent it relates to any of the foregoing) shall not apply at any time that (i) the Company fails to comply in all material respects with its obligations under Article 5 hereof, which failure continues unremedied for a period of 10 business days following receipt good faith by the Company New Directors of a written notice from the Block Sale Transferee of such failure or (ii) the Block Sale Transferee has relinquished its nomination rights pursuant to Article 5 and all Block Sale Transferee nominated their fiduciary duties solely in their capacity as directors have resigned; or (b)]5 in the event that (x) the Board of Directors determines that the Company should engage in any transaction described in Section 3.1(e)(i) or 3.1(e)(ii), the Block Sale Transferee shall be permitted to participate in such Board of Directors’ approved transaction as a shareholder on the same terms and conditions as any other shareholder of the Company, (y) the Board of Directors determines that the Company should solicit from one or more Persons or enter into discussions with one or more Persons regarding, or invites any other Person or group to make a proposal (without similarly inviting the Block Sale Transferee to make a similar proposal) with respect to an acquisition of (i) all or substantially all of the equity securities or assets of the Company or any of its Subsidiaries (by merger, tender offer or otherwise) or (ii) any material assets or businesses of the Company or any of its Subsidiaries, the Block Sale Transferee shall have the right to make a non-public competing proposal to the Board of Directors in compliance with any written procedures generally applicable to Persons making proposals provided by the Company 5 Note to form: enumerated restrictions to be removed if the Block Sale Transferee does not accept the board nomination rights. or the Board of Directors or (z) any third party that is not an Affiliate of the Block Sale Transferee makes a bona fide offer or proposal, with respect to a matter described in Section 3.1(d) or 3.1(e) above (a “Third Party Proposal”), the Block Sale Transferee (A) shall have the right to make a non-public competing proposal to the Board of Directors and may publicly announce that it has made a competing proposal to the Board of Directors so long as such public announcement does not constitute an offer or a solicitation to any recipient thereof and (B) may tender, exchange or otherwise sell or transfer its Company Common Shares (or other equity securities of the Company) to such third party in accordance with the Third Party Proposal; provided, however, that in the case of clauses (y) and (z), the Block Sale Transferee shall be prohibited from participating with, joining in a group with or providing financing to any such third party). [For the avoidance of doubt, any discussions involving the directors nominated by the Block Sale Transferee pursuant to Article 5 hereof (i) at a meeting of the Board of Directors or (ii) with management of the Company, other members of the Board of Directors or any of the Company’s advisors or representatives, in the case of clauses (i) and (ii), while acting in such directors’ capacity as members of the Board of Directors, shall not be deemed to violate any of the provisions of this Article 3.]6.
Appears in 2 contracts
Samples: Agreement (Starboard Value LP), Shareholder Agreement (Algonquin Power & Utilities Corp.)
Standstill Provisions. During (a) Starboard agrees that, from the date of this Agreement until the earlier of (x) the date that is fifteen (15) business days prior to the deadline for the submission of stockholder nominations for the 2019 Annual Meeting pursuant to the Company’s Bylaws or (y) the date that is ninety (90) days prior to the first anniversary of the 2018 Annual Meeting (the “Standstill Period”), unless expressly authorized in writing to do so by a majority neither it nor any of the members of the Board of Directors, acting through a committee of directors that qualify as “independent directors” as defined by applicable stock exchange listing rules [(which term, for this purpose, will exclude any directors nominated by the Block Sale Transferee)]1, the Block Sale Transferee shall notits controlled Affiliates or Associates will, and shall it will cause each of its controlled Affiliates and Associates not to, directly or indirectly, acting alone or as part of a groupin any manner:
(ai) makeengage in any solicitation of proxies or consents or become a “participant” in a “solicitation” (as such terms are defined in Regulation 14A under the Exchange Act) of proxies or consents (including, without limitation, any solicitation of consents that seeks to call a special meeting of stockholders), in each case, with respect to securities of the Company;
(ii) form, join or in any way participate in any solicitation “group” (within the meaning of any proxy [(but without regard to the exclusion set forth in Rule 14a-1(l)(2)(ivSection 13(d)(3) under of the Exchange Act from the definition of “solicitation”)]2 to vote any Company Common Shares (or other equity securities of the CompanyAct) with respect to the shares of Common Stock (other than a “group” that includes all or some of the entities or persons identified on Exhibit A, but does not include any matter other entities or persons not identified on Exhibit A as of the date hereof); provided, however, that nothing herein shall limit the ability of an Affiliate of Starboard to join the “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;
(includingiii) deposit any shares of Common Stock in any voting trust or subject any shares of Common Stock to any arrangement or agreement with respect to the voting of any shares of Common Stock, without limitationother than any such voting trust, arrangement or agreement solely among the members of Starboard and otherwise in accordance with this Agreement;
(iv) seek or submit, or encourage any person or entity to seek or submit, nomination(s) in furtherance of a “contested solicitation solicitation” for the appointment, election or removal of directors with respect to the Company)Company or seek, encourage or take any other than solicitations action with respect to the appointment, election or acting removal of any directors; provided, however, that nothing in this Agreement shall prevent Starboard or its Affiliates or Associates from taking actions in furtherance of identifying director candidates in connection with the 2019 Annual Meeting so long as such actions do not create a participant public disclosure obligation for Starboard or the Company and are undertaken on a basis reasonably designed to be confidential and in support of accordance in all of material respects with Starboard’s normal practices in the Company’s nominees [including, without limitation, the nominees of the Block Sale Transferee pursuant to Article 5]3circumstances;
(bA) form, join in make any proposal for consideration by stockholders at any annual or in any way participate in a group (for the avoidance special meeting of doubt, the Block Sale Transferee shall not be deemed to have formed, joined in or in any way participated in a group with stockholders of the Company as or through any written consent of stockholders, (B) 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 Starboard (or its Affiliates) and the Company, (C) affirmatively solicit a result of third party to make an 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 the Block Sale Transferee’s execution of this AgreementCompany, or publicly encourage or support any third party in making such an offer or proposal, (D) publicly comment on any third party proposal regarding any merger, tender offer, acquisition, recapitalization, restructuring, disposition, or other business combination with respect to the Company Common Shares by such third party prior to such proposal becoming public or (E) call or other equity securities of the Company) or deposit any Company Common Shares (or other equity securities of the Company) in a voting trust or similar arrangement or subject any Company Common Shares (or other equity securities of the Company) to any voting agreement or similar arrangement, or grant any proxy with respect to any Company Common Shares (or other equity securities of the Company) (other than to a designated representative of the 1 Note to form: bracketed language to be removed if Block Sale Transferee does not accept the board nomination rights. 2 Note to form: bracketed language to be removed if Block Sale Transferee does not accept the board nomination rights. 3 Note to form: bracketed language to be removed if Block Sale Transferee does not accept the board nomination rights. Company pursuant to a proxy statement of the Company), other than as contemplated by the Governance Agreement or the Stockholders Agreement or the transactions contemplated thereby;
(c) seek to call, or to request the calling of, or call a special meeting of the stockholders of the Company, or seek to make, or make, a stockholder proposal (whether pursuant to Rule 14a-8 under the Exchange Act or otherwise) at any meeting of the stockholders of the Company, or make a request for a list of the Company’s stockholders, or[, other than pursuant to the Block Sale Transferee’s nomination rights in accordance with Article 5 of this Agreement,]4 seek election of a representative to the Board of Directors, seek to place a representative on the Board of Directors or seek the removal of any director from the Board of Directors, or otherwise acting alone, or act by participating in a group, seek to control or influence the governance or policies of the Companywritten consent;
(dvi) effect seek, alone or in concert with others, representation on the Board, except as specifically permitted in Section 1;
(vii) seek to effect (includingadvise, without limitationencourage, by entering into support or influence any discussions, negotiations, agreements person or understandings whether entity with respect to the voting or not legally enforceable with any third Person), offer or propose (whether publicly or otherwise) to effect, or cause or participate in, or in any way assist or facilitate any other Person to effect or seek, offer or propose (whether publicly or otherwise) to effect or participate in any acquisition disposition of any Company Common Shares (or other equity securities of the Company) (Company at any annual or Beneficial Ownership thereof) in excess special meeting of the Ownership Limitationstockholders or consent solicitation, except in accordance with Section 2.11; providedor
(viii) make any request or submit any proposal to amend the terms of this Agreement other than through non-public communications with the Company that would not be reasonably determined to trigger public disclosure obligations for any Party.
(b) Except as expressly provided in Section 1 or Section 2(a), thatStarboard shall be entitled to (i) vote the shares of Common Stock that it beneficially owns as it determines in its sole discretion and (ii) disclose, for the avoidance of doubtpublicly or otherwise, the Block Sale Transferee is permitted how it intends to Transfer vote or act with respect to an unaffiliated third party any Company Common Shares (or other equity securities of the Company) Beneficially Owned , any stockholder proposal or other matter to be voted on by the Block Sale Transferee, subject to the provisions of Article 8 hereof, if applicable;
(e) effect or seek to effect (including, without limitation, by entering into any discussions, negotiations, agreements or understandings whether or not legally enforceable with any third Person), offer or propose (whether publicly or otherwise) to effect, or cause or participate in, or in any way assist or facilitate any other Person to effect or seek, offer or propose (whether publicly or otherwise) to effect or participate in (i) any tender offer or exchange offer, merger, acquisition, share exchange or other business combination involving the Company or any of its Subsidiaries, (ii) any recapitalization, restructuring, liquidation, dissolution or other extraordinary transaction with respect to the Company or any of its Subsidiaries or any material portion of its or their businesses, or (iii) any acquisition of any material assets or businesses stockholders of the Company or any of its Subsidiaries;and the reasons therefor.
(f) publicly disclose, or cause or, in a material manner, facilitate the public disclosure (including without limitation through the filing by it of any document or report with the SEC or any other governmental agency or any disclosure to any 4 Note to form: bracketed language to be removed if Block Sale Transferee does not accept the board nomination rights. journalist, member of the media or securities analyst) of any intent, purpose, plan or proposal to obtain any waiver, or consent under, or any amendment of, any of the provisions of Section 2.1, this Section 3.1, or Article 4 (except as described in Section 4.1) or bring any action to (i) contest the validity of Section 2.1, this Section 3.1 or Article 4, or (ii) seek a release from the restrictions contained in Section 2.1, this Section 3.1 or Article 4;
(g) unless required by law, make or issue or cause to be made or issued any public disclosure, announcement or statement (including without limitation the filing of any document or report with the SEC or any other governmental agency or any disclosure to any journalist, member of the media or securities analyst) (i) in support of any solicitation described in paragraph (a) above (other than solicitations by the Company), (ii) in support of any matter described in paragraph (c) above, (iii) concerning any potential matter described Nothing in paragraph (d) above; (iv) concerning any potential matter described this Agreement shall be deemed to limit the exercise in paragraph (e) above; good faith by a New Appointee or (v) negatively commenting upon the Company’s corporate strategy, business, corporate activities, board of directors or management (for the avoidance of doubt, making any factual statement about the Company’s corporate strategy, business, corporate activities, board of directors or management shall not be prohibited by this Section 3.1(g)(v)); or
(h) enter into any discussions, negotiations, agreements or understandings with any Person with respect to any of the foregoing or advise, assist or seek to persuade others to take any action with respect to any of the foregoing. Notwithstanding the foregoing, (a) [the restrictions in Sections 3.1(d), 3.1(e), 3.1(f), 3.1(g)(iii), 3.1(g)(iv), 3.1(g)(v) and 3.1(h) (to the extent it relates to any of the foregoing) shall not apply at any time that (i) the Company fails to comply in all material respects with its obligations under Article 5 hereof, which failure continues unremedied for a period of 10 business days following receipt by the Company of a written notice from the Block Sale Transferee Mutual Independent Appointee of such failure or (ii) the Block Sale Transferee has relinquished its nomination rights pursuant to Article 5 and all Block Sale Transferee nominated directors have resigned; or (b)]5 in the event that (x) the Board of Directors determines that the Company should engage in any transaction described in Section 3.1(e)(i) or 3.1(e)(ii), the Block Sale Transferee shall be permitted to participate person’s fiduciary duties solely in such Board of Directors’ approved transaction person’s capacity as a shareholder on the same terms and conditions as any other shareholder of the Company, (y) the Board of Directors determines that the Company should solicit from one or more Persons or enter into discussions with one or more Persons regarding, or invites any other Person or group to make a proposal (without similarly inviting the Block Sale Transferee to make a similar proposal) with respect to an acquisition of (i) all or substantially all of the equity securities or assets director of the Company or any of its Subsidiaries (by merger, tender offer or otherwise) or (ii) any material assets or businesses of the Company or any of its Subsidiaries, the Block Sale Transferee shall have the right to make a non-public competing proposal to the Board of Directors in compliance with any written procedures generally applicable to Persons making proposals provided by the Company 5 Note to form: enumerated restrictions to be removed if the Block Sale Transferee does not accept the board nomination rights. or the Board of Directors or (z) any third party that is not an Affiliate of the Block Sale Transferee makes a bona fide offer or proposal, with respect to a matter described in Section 3.1(d) or 3.1(e) above (a “Third Party Proposal”), the Block Sale Transferee (A) shall have the right to make a non-public competing proposal to the Board of Directors and may publicly announce that it has made a competing proposal to the Board of Directors so long as such public announcement does not constitute an offer or a solicitation to any recipient thereof and (B) may tender, exchange or otherwise sell or transfer its Company Common Shares (or other equity securities of the Company) to such third party in accordance with the Third Party Proposal; provided, however, that in the case of clauses (y) and (z), the Block Sale Transferee shall be prohibited from participating with, joining in a group manner consistent with or providing financing to any such third party). [For the avoidance of doubt, any discussions involving the directors nominated by the Block Sale Transferee pursuant to Article 5 hereof (i) at a meeting of the Board of Directors or (ii) with management of the Company, other members of the Board of Directors or any of the Companyperson’s advisors or representatives, in the case of clauses (i) and (ii), while acting in such directors’ capacity as members of the Board of Directors, shall not be deemed to violate any of the provisions of obligations under this Article 3.]6Agreement.
Appears in 2 contracts
Samples: Shareholder Agreement (Starboard Value LP), Shareholder Agreement (Symantec Corp)
Standstill Provisions. During (a) The Stockholder Group agrees that, from the date of this Agreement until the date that is ten (10) business days prior to the deadline for the submission of stockholder nominations for the 2015 Annual Meeting pursuant to the Company’s bylaws (the “Standstill Period”), unless expressly authorized in writing to do so by a majority neither it nor any of its Related Persons (as defined herein) nor any other persons acting under the control or direction of any member of the members of the Board of Directors, acting through a committee of directors that qualify as “independent directors” as defined by applicable stock exchange listing rules [(which term, for this purpose, will exclude any directors nominated by the Block Sale Transferee)]1, the Block Sale Transferee shall notStockholder Group will, and shall it will cause each of its Affiliates Related Persons and such other persons not to, directly or indirectly, acting alone or as part of a groupin concert with others, in any manner to:
(ai) makesolicit, encourage or in any way engage in any solicitation of, any proxies or written consents or conduct any non-binding referendum, or assist or participate in any way, directly or indirectly, in any solicitation of proxies or written consents or otherwise become a “participant” in a “solicitation” as such terms are defined in Regulation 14A under the Exchange Act of proxies or consents (including, without limitation, any solicitation of consents that seeks to call a special meeting of stockholders), in each case, with respect to securities of the Company;
(ii) acquire, offer or propose to acquire, or agree to acquire, directly or indirectly, whether by purchase, tender or exchange offer, through the acquisition of control of another person, by joining 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), through swap or hedging transactions or otherwise, any securities of the Company or any rights decoupled from the underlying securities of the Company that would result in the Stockholder Group (together with all Affiliates thereof ) owning, controlling or otherwise having any beneficial or other ownership interest in more than 20.0% in the aggregate of the shares of Common Stock outstanding at such time; provided that nothing herein will require Common Stock to be sold to the extent the Stockholder Group exceeds the ownership limit under this paragraph solely as the result of a share repurchase or similar Company action that reduces the number of outstanding shares of Common Stock so long as the beneficial or other ownership interest of the Stockholder Group does not increase thereafter (except solely as a result of further corporate actions taken by the Company), unless and until such ownership interest before and after such subsequent increase does not exceed such 20.0% limitation;
(iii) sell, offer or agree to sell directly or indirectly, through swap or hedging transactions or otherwise, the securities of the Company or any rights decoupled from the underlying securities held by the Stockholder Group to any person or entity not a (A) party to this Agreement, (B) member of the Board, (C) officer of the Company, or (D) an Affiliate of a member of the Stockholder Group (any person or entity not set forth in clauses (A)-(D) shall be referred to as a “Third Party”) that the Stockholder Group knows would result in such Third Party, together with its affiliates and associates, owning, controlling or otherwise having any beneficial or other ownership interest of more than 9.9% in the aggregate of the shares of Common Stock outstanding at such time, except in a transaction approved by a majority of the entire Board;
(iv) engage in any short sale or any purchase, sale or grant of any option, warrant, convertible security, stock appreciation right, or other similar right (including, without limitation, any put or call option or “swap” transaction) with respect to any security (other than a broad-based market basket or index) that includes, relates to or derives any significant part of its value from a decline in the market price or value of the securities of the Company;
(v) form, join or in any way participate in any solicitation “group” (within the meaning of any proxy [(but without regard to the exclusion set forth in Rule 14a-1(l)(2)(ivSection 13(d)(3) under of the Exchange Act from the definition of “solicitation”)]2 to vote any Company Common Shares (or other equity securities of the CompanyAct) with respect to the Common Stock (other than a “group” that includes all or some of the persons identified on Exhibit A, but does not include any matter other entities or persons not identified on Exhibit A as of the date hereof); provided, however, that nothing herein shall limit the ability of an Affiliate of the Stockholder Group to join the “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;
(includingvi) take any action that would be deemed, without limitationpursuant to this Agreement, to be Acting in Concert (as defined herein) with another person relating to changing or influencing the control of the Company or in connection with or as a participant in any transaction having that purpose or effect;
(vii) demand a copy of the Company’s list of stockholders or its other books and records, whether pursuant to Section 78.257 of the Nevada General Corporation Law or otherwise;
(viii) commence, encourage, or support any derivative action in the name of the Company, or any class action against the Company or any of its officers or directors;
(ix) deposit any Common Stock in any voting trust or subject any Common Stock to any arrangement or agreement with respect to the voting of any Common Stock, other than any such voting trust, arrangement or agreement solely among the members of the Stockholder Group and otherwise in accordance with this Agreement;
(x) seek or encourage the removal of any director from the Board, including seeking or encouraging any person to submit nominations in furtherance of a “contested solicitation solicitation” for the election or removal of directors with respect to the Company; provided, however, that nothing herein will limit the ability of the Stockholder Group to privately recommend to the Board a Replacement Director(s) in accordance with Section 1(h), other than solicitations or acting as a participant ;
(xi) take any action in support of all or make any proposal or request that constitutes: (A) advising, controlling, changing or influencing the Board or management of the Company’s nominees [including, without limitationincluding any plans or proposals to change the number or term of directors or to fill any vacancies on the Board, except as set forth herein, (B) any material change in the nominees capitalization, stock repurchase programs and practices or dividend policy of the Block Sale Transferee Company, (C) any other material change in the Company’s management, business or corporate structure, (D) seeking to have the Company waive or make amendments or modifications to the Company’s Articles of Incorporation or Bylaws, or other actions that may impede or facilitate the acquisition of control of the Company by any person, (E) causing a class of securities of the Company to be delisted from, or to cease to be authorized to be quoted on, any securities exchange; or (F) causing a class of securities of the Company to become eligible for termination of registration pursuant to Article 5]3Section 12(g)(4) of the Exchange Act;
(bA) form, join in make any proposal for consideration by stockholders at any annual or in any way participate in a group (for the avoidance special meeting of doubt, the Block Sale Transferee shall not be deemed to have formed, joined in or in any way participated in a group with stockholders of the Company as a result of the Block Sale Transferee’s execution of this Agreementor (B) make any offer or proposal (with or without conditions) with respect to the Company Common Shares (a merger, acquisition, disposition or other equity securities of business combination involving the Company) or deposit any Company Common Shares (or other equity securities of the Company) in a voting trust or similar arrangement or subject any Company Common Shares (or other equity securities of the Company) to any voting agreement or similar arrangement, or grant any proxy with respect to any Company Common Shares (or other equity securities of the Company) (other than to a designated representative of the 1 Note to form: bracketed language to be removed if Block Sale Transferee does not accept the board nomination rights. 2 Note to form: bracketed language to be removed if Block Sale Transferee does not accept the board nomination rights. 3 Note to form: bracketed language to be removed if Block Sale Transferee does not accept the board nomination rights. Company pursuant to a proxy statement of the Company), other than as contemplated by the Governance Agreement or the Stockholders Agreement or the transactions contemplated thereby;
(c) seek to call, or to request the calling of, or call a special meeting of the stockholders of Stockholder Group and the Company, or seek encourage, initiate or support any other third party in any such related activity or (C) make any public communication in opposition to make, any Company acquisition or make, a stockholder proposal disposition activity approved by the Board;
(whether xiii) communicate with stockholders of the Company or others pursuant to Rule 14a-8 14a-1(l)(2)(iv) under the Exchange Act Act;
(xiv) seek, alone or otherwisein concert with others, representation on the Board, except as specifically contemplated in Section 1;
(xv) at any meeting of otherwise publicly act to seek to influence the stockholders of the Companymanagement, or make a request for a list of the Company’s stockholders, or[, other than pursuant to the Block Sale Transferee’s nomination rights in accordance with Article 5 of this Agreement,]4 seek election of a representative to the Board of Directors, seek to place a representative on the Board of Directors or seek the removal of any director from the Board of Directors, or otherwise acting alone, or by participating in a group, seek to control or influence the governance or policies of the Company;
(dxvi) effect acquire or agree, offer, seek or propose to effect acquire, or cause to be acquired, ownership (including, without limitation, by entering including beneficial ownership) of any of the assets or business of the Company or any rights or options to acquire any such assets or business from any person;
(xvii) enter into any discussions, negotiations, agreements or understandings whether or not legally enforceable with any third Person)Third Party with respect to any of the foregoing, offer or propose advise, assist, knowingly encourage or seek to persuade any Third Party to take any action or make any statement with respect to any of the foregoing, or otherwise take or cause any action or make any statement inconsistent with any of the foregoing;
(whether xviii) take any action challenging the validity or enforceability of any of the provisions of this Section 2 or publicly or otherwise) to effectdisclose, or cause or participate in, or in any way assist or facilitate any other Person to effect or seek, offer or propose (whether publicly or otherwise) to effect or participate in any acquisition of any Company Common Shares (or other equity securities of the Company) (or Beneficial Ownership thereof) in excess of the Ownership Limitation, except in accordance with Section 2.1; provided, that, for the avoidance of doubt, the Block Sale Transferee is permitted to Transfer to an unaffiliated third party any Company Common Shares (or other equity securities of the Company) Beneficially Owned by the Block Sale Transferee, subject to the provisions of Article 8 hereof, if applicable;
(e) effect or seek to effect public disclosure (including, without limitation, by entering into any discussions, negotiations, agreements or understandings whether or not legally enforceable with any third Person), offer or propose (whether publicly or otherwise) to effect, or cause or participate in, or in any way assist or facilitate any other Person to effect or seek, offer or propose (whether publicly or otherwise) to effect or participate in (i) any tender offer or exchange offer, merger, acquisition, share exchange or other business combination involving the Company or any of its Subsidiaries, (ii) any recapitalization, restructuring, liquidation, dissolution or other extraordinary transaction with respect to the Company or any of its Subsidiaries or any material portion of its or their businesses, or (iii) any acquisition of any material assets or businesses of the Company or any of its Subsidiaries;
(f) publicly disclose, or cause or, in a material manner, facilitate the public disclosure (including without limitation through the filing by it of any document or report with the SEC or any other governmental agency or any disclosure to any 4 Note to form: bracketed language to be removed if Block Sale Transferee does not accept the board nomination rights. journalist, member of the media or securities analyst) of any intent, purpose, plan or proposal to obtain any waiver, or consent under, or any amendment of, any of the provisions of Section 2.1, this Section 3.1, or Article 4 (except as described in Section 4.1) or bring any action to (i) contest the validity of Section 2.1, this Section 3.1 or Article 4, or (ii) seek a release from the restrictions contained in Section 2.1, this Section 3.1 or Article 4;
(g) unless required by law, make or issue or cause to be made or issued any public disclosure, announcement or statement (including without limitation the filing of any document or report with the SEC or any other governmental agency or any disclosure to any journalist, member of the media or securities analyst) (i) in support of, any intent, purpose, plan or proposal to take any action challenging the validity or enforceability of any solicitation described in paragraph (a) above (other than solicitations by the Company), (ii) in support provisions of any matter described in paragraph (c) above, (iii) concerning any potential matter described in paragraph (d) above; (iv) concerning any potential matter described in paragraph (e) above; or (v) negatively commenting upon the Company’s corporate strategy, business, corporate activities, board of directors or management (for the avoidance of doubt, making any factual statement about the Company’s corporate strategy, business, corporate activities, board of directors or management shall not be prohibited by this Section 3.1(g)(v))2; or
(hxix) enter into take any discussions, negotiations, agreements action which could cause or understandings with require the Company or any Person with respect Affiliate of the Company to make a public announcement regarding any of the foregoing foregoing, publicly seek or adviserequest permission to do any of the foregoing, assist publicly make any request to amend, waive or terminate any provision of this Section 2 (including, without limitation, this Section 2(a)(xix)), or make or seek permission to persuade others to take make any action public announcement with respect to any of the foregoing. Notwithstanding the foregoing, except in accordance with this Agreement.
(ab) [the restrictions Nothing in Sections 3.1(d), 3.1(e), 3.1(f), 3.1(g)(iii), 3.1(g)(iv), 3.1(g)(v) and 3.1(h) (to the extent it relates to any of the foregoing) this Section 2 shall not apply at any time that prevent (i) the Company fails to comply Stockholder Group from freely voting its shares of Common Stock (except as otherwise provided in all material respects with its obligations under Article 5 hereofSection 1 hereto), which failure continues unremedied for a period of 10 business days following receipt by the Company of a written notice from the Block Sale Transferee of such failure or (ii) Stockholder Group from taking any actions as specifically contemplated in Section 1 in furtherance of reconstituting the Block Sale Transferee has relinquished its nomination rights pursuant to Article 5 Board in a manner consistent with the composition of the Board as set forth in Sections 1(a) and all Block Sale Transferee nominated directors have resigned; (b), or (b)]5 iii) Xx. Xxxx, or any Replacement Director, as applicable, from taking any action solely in the event that (x) the Board their capacity as directors of Directors determines that the Company should engage in accordance with their respective fiduciary duties as directors of the Company (it being understood and agreed that neither the Stockholder Group nor any transaction described of its Affiliates shall seek to do indirectly through the Stockholder Group Nominees anything that would be prohibited if done by the Stockholder Group or its Affiliates).
(c) As used in Section 3.1(e)(i) or 3.1(e)(ii)this Agreement, the Block Sale Transferee terms “beneficial owner” and “beneficial ownership” shall be permitted to participate in such Board of Directors’ approved transaction as a shareholder on have the same meanings as set forth in Rule 13d-3 promulgated by the SEC under the Exchange Act; the terms “economic owner” and conditions “economically own” shall have the same meanings as any other shareholder of “beneficial owner” and “beneficially ownership,” except that a person will also be deemed to economically own and to be the Company, (y) the Board of Directors determines that the Company should solicit from one or more Persons or enter into discussions with one or more Persons regarding, or invites any other Person or group to make a proposal (without similarly inviting the Block Sale Transferee to make a similar proposal) with respect to an acquisition economic owner of (i) all or substantially all shares of Common Stock which such person has the equity right to acquire pursuant to the exercise of any rights in connection with any securities or assets any agreement, regardless of the Company or any of its Subsidiaries (by mergerwhen such rights may be exercised and whether they are conditional, tender offer or otherwise) or and (ii) all shares of Common Stock in which such person has any material assets economic interest, including, without limitation, pursuant to a cash settled call option or businesses other derivative security, contract or instrument in any way related to the price of shares of Common Stock; the Company terms “person” or “persons” shall mean any individual, corporation (including not-for-profit), general or limited partnership, limited liability company, joint venture, estate, trust, association, organization or other entity of any kind or nature; and the term “Related Person” shall mean, as to any person, any Affiliates or Associates of such person, and any other person with whom such person or such person’s Affiliates or Associates is Acting in Concert (as herein defined) or any Affiliate or Associate of its Subsidiaries, the Block Sale Transferee shall have the right to make a non-public competing proposal to the Board of Directors in compliance with any written procedures generally applicable to Persons making proposals provided by the Company 5 Note to form: enumerated restrictions to be removed if the Block Sale Transferee does not accept the board nomination rights. or the Board of Directors or (z) any third party that is not an Affiliate of the Block Sale Transferee makes a bona fide offer or proposal, with respect to a matter described in Section 3.1(d) or 3.1(e) above (a “Third Party Proposal”), the Block Sale Transferee (A) shall have the right to make a non-public competing proposal to the Board of Directors and may publicly announce that it has made a competing proposal to the Board of Directors so long as such public announcement does not constitute an offer or a solicitation to any recipient thereof and (B) may tender, exchange or otherwise sell or transfer its Company Common Shares (or other equity securities of the Company) to such third party in accordance with the Third Party Proposal; provided, however, that in the case of clauses (y) and (z), the Block Sale Transferee shall be prohibited from participating with, joining in a group with or providing financing to any such third party). [For the avoidance of doubt, any discussions involving the directors nominated by the Block Sale Transferee pursuant to Article 5 hereof (i) at a meeting of the Board of Directors or (ii) with management of the Company, other members of the Board of Directors or any of the Company’s advisors or representatives, in the case of clauses (i) and (ii), while acting in such directors’ capacity as members of the Board of Directors, shall not be deemed to violate any of the provisions of this Article 3.]6person.
Appears in 2 contracts
Samples: Settlement Agreement (IRS Partners No. 19, L.P.), Settlement Agreement (RCM Technologies Inc)
Standstill Provisions. During (a) Starboard agrees that, from the date of this Agreement until the earlier of (i) the date that is fifteen (15) business days prior to the deadline for the submission of stockholder nominations for the 2014 annual meeting of stockholders of the Company pursuant to the Company’s bylaws or (ii) the date that is one-hundred (100) days prior to the first anniversary of the 2013 Annual Meeting (the “Standstill Period”), unless expressly authorized in writing to do so by a majority neither it nor any of the members of the Board of Directors, acting through a committee of directors that qualify as “independent directors” as defined by applicable stock exchange listing rules [(which term, for this purpose, will exclude any directors nominated by the Block Sale Transferee)]1, the Block Sale Transferee shall notits Affiliates or Associates under its control or direction will, and shall it will cause each of its Affiliates and Associates under its control not to, directly or indirectly, acting alone or as part of a groupin any manner:
(ai) makeengage in any solicitation of proxies or consents or become a “participant” in a “solicitation” as such terms are defined in Regulation 14A under the Exchange Act of proxies or consents (including, without limitation, any solicitation of consents that improperly seeks to call a special meeting of stockholders), in each case, with respect to securities of the Company;
(ii) form, join or in any way participate in any solicitation “group” (within the meaning of any proxy [(but without regard to the exclusion set forth in Rule 14a-1(l)(2)(ivSection 13(d)(3) under of the Exchange Act from the definition of “solicitation”)]2 to vote any Company Common Shares (or other equity securities of the CompanyAct) with respect to the Common Stock (other than a “group” that includes all or some of the persons identified on Exhibit A, but does not include any matter other entities or persons not identified on Exhibit A as of the date hereof); provided, however, that nothing herein shall limit the ability of an Affiliate of Starboard to join the “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;
(includingiii) deposit any Common Stock in any voting trust or subject any Common Stock to any arrangement or agreement with respect to the voting of any Common Stock, without limitationother than any such voting trust, arrangement or agreement solely among the members of Starboard and otherwise in accordance with this Agreement;
(iv) seek or encourage any person to submit nominations in furtherance of a “contested solicitation solicitation” for the election or removal of directors with respect to the Company)Company or seek, encourage or take any other than solicitations or acting as a participant in support of all of the Company’s nominees [including, without limitation, the nominees of the Block Sale Transferee pursuant to Article 5]3;
(b) form, join in or in any way participate in a group (for the avoidance of doubt, the Block Sale Transferee shall not be deemed to have formed, joined in or in any way participated in a group with the Company as a result of the Block Sale Transferee’s execution of this Agreement) action with respect to the Company Common Shares (election or other equity securities removal of the Company) or deposit any Company Common Shares (or other equity securities of the Company) in a voting trust or similar arrangement or subject any Company Common Shares (or other equity securities of the Company) to any voting agreement or similar arrangement, or grant any proxy with respect to any Company Common Shares (or other equity securities of the Company) (other than to a designated representative of the 1 Note to form: bracketed language to be removed if Block Sale Transferee does not accept the board nomination rights. 2 Note to form: bracketed language to be removed if Block Sale Transferee does not accept the board nomination rights. 3 Note to form: bracketed language to be removed if Block Sale Transferee does not accept the board nomination rights. Company pursuant to a proxy statement of the Company), other than as contemplated by the Governance Agreement or the Stockholders Agreement or the transactions contemplated therebydirectors;
(cA) seek to call, make any proposal for consideration by stockholders at any annual or to request the calling of, or call a special meeting of the stockholders of the Company, (B) make any offer or seek to make, or make, a stockholder proposal (whether pursuant with or without conditions) with respect to Rule 14a-8 under the Exchange Act a merger, acquisition, recapitalization, restructuring, disposition or otherwise) at any meeting of the stockholders of other business combination involving Starboard and the Company, or encourage, initiate or support any other third party in any such related activity or (C) make a request for a list of any public communication in opposition to any Company acquisition or disposition activity approved by the Company’s stockholders, or[, other than pursuant to the Block Sale Transferee’s nomination rights in accordance with Article 5 of this Agreement,]4 seek election of a representative to the Board of Directors, seek to place a representative on the Board of Directors or seek the removal of any director from the Board of Directors, or otherwise acting alone, or by participating in a group, seek to control or influence the governance or policies of the CompanyBoard;
(dvi) effect seek, alone or in concert with others, representation on the Board, except as specifically contemplated in Section 1;
(vii) seek to effect (includingadvise, without limitationencourage, by entering into support or influence any discussions, negotiations, agreements person with respect to the voting or understandings whether or not legally enforceable with any third Person), offer or propose (whether publicly or otherwise) to effect, or cause or participate in, or in any way assist or facilitate any other Person to effect or seek, offer or propose (whether publicly or otherwise) to effect or participate in any acquisition disposition of any Company Common Shares (or other equity securities of the Company) (Company at any annual or Beneficial Ownership thereof) in excess special meeting of the Ownership Limitationstockholders, except in accordance with Section 2.11; providedor
(viii) make any request or submit any proposal to amend the terms of this Agreement other than through non-public communications with the Company that would not be reasonably determined to trigger public disclosure obligations for any Party.
(b) Except as expressly provided in Section 1 or Section 2(a), thateach member of Starboard shall be entitled to:
(i) vote their shares on any other proposal duly brought before the 2013 Annual Meeting, for the avoidance or otherwise vote as each member of doubtStarboard determines in its sole discretion; or
(ii) disclose, the Block Sale Transferee is permitted publicly or otherwise, how it intends to Transfer vote or act with respect to an unaffiliated third party any Company Common Shares (or other equity securities of the Company) Beneficially Owned , any stockholder proposal or other matter to be voted on by the Block Sale Transferee, subject to the provisions of Article 8 hereof, if applicable;
(e) effect or seek to effect (including, without limitation, by entering into any discussions, negotiations, agreements or understandings whether or not legally enforceable with any third Person), offer or propose (whether publicly or otherwise) to effect, or cause or participate in, or in any way assist or facilitate any other Person to effect or seek, offer or propose (whether publicly or otherwise) to effect or participate in (i) any tender offer or exchange offer, merger, acquisition, share exchange or other business combination involving the Company or any of its Subsidiaries, (ii) any recapitalization, restructuring, liquidation, dissolution or other extraordinary transaction with respect to the Company or any of its Subsidiaries or any material portion of its or their businesses, or (iii) any acquisition of any material assets or businesses stockholders of the Company or any of its Subsidiaries;
(f) publicly discloseand the reasons therefore; provided that, or cause oras applicable, in a material manner, facilitate the public disclosure (including without limitation through the filing by it of any document or report with the SEC or any other governmental agency or any disclosure to any 4 Note to form: bracketed language to be removed if Block Sale Transferee does not accept the board nomination rights. journalist, member of the media or securities analyst) of any intent, purpose, plan or proposal to obtain any waiver, or consent under, or any amendment of, any of the provisions of Section 2.1, this Section 3.1, or Article 4 (except as described in Section 4.1) or bring any action to (i) contest the validity of Section 2.1, this Section 3.1 or Article 4, or (ii) seek a release from the restrictions contained in Section 2.1, this Section 3.1 or Article 4;
(g) unless required by law, make or issue or cause to be made or issued any public disclosure, announcement or statement (including without limitation the filing of any document or report with the SEC or any other governmental agency or any disclosure to any journalist, member of the media or securities analyst) (i) in support of any solicitation described in paragraph (a) above (other than solicitations by the Company), (ii) in support of any matter described in paragraph (c) above, (iii) concerning any potential matter described in paragraph (d) above; (iv) concerning any potential matter described in paragraph (e) above; or (v) negatively commenting upon the Company’s corporate strategy, business, corporate activities, board of directors or management (for the avoidance of doubt, making any factual statement about the Company’s corporate strategy, business, corporate activities, board of directors or management shall not be prohibited by this Section 3.1(g)(v)); or
(h) enter into any discussions, negotiations, agreements or understandings with any Person with respect to any of the foregoing or advise, assist or seek to persuade others to take any action with respect to any of the foregoing. Notwithstanding the foregoing, (a) [the restrictions in Sections 3.1(d), 3.1(e), 3.1(f), 3.1(g)(iii), 3.1(g)(iv), 3.1(g)(v) and 3.1(h) (to the extent it relates to any of the foregoing) shall not apply at any time that (i) the Company fails to comply in all material respects with its obligations under Article 5 hereof, which failure continues unremedied for a period of 10 business days following receipt by the Company of a written notice from the Block Sale Transferee of such failure or (ii) the Block Sale Transferee has relinquished its nomination rights pursuant to Article 5 and all Block Sale Transferee nominated directors have resigned; or (b)]5 in the event that (x) the Board of Directors determines that the Company should engage in any transaction described in Section 3.1(e)(i) or 3.1(e)(ii), the Block Sale Transferee shall be permitted to participate in such Board of Directors’ approved transaction as a shareholder on the same terms and conditions as any other shareholder of the Company, (y) the Board of Directors determines that the Company should solicit from one or more Persons or enter into discussions with one or more Persons regarding, or invites any other Person or group to make a proposal (without similarly inviting the Block Sale Transferee to make a similar proposal) with respect to an acquisition of (i) all or substantially all of the equity securities or assets of the Company or any of its Subsidiaries (by merger, tender offer or otherwise) or (ii) any material assets or businesses of the Company or any of its Subsidiaries, the Block Sale Transferee shall have the right to make a non-public competing proposal to the Board of Directors activity is in compliance with any written procedures generally applicable to Persons making proposals provided by the Company 5 Note to form: enumerated restrictions to be removed if the Block Sale Transferee does not accept the board nomination rights. or the Board of Directors or (z) any third party that is not an Affiliate of the Block Sale Transferee makes a bona fide offer or proposal, with respect to a matter described in Section 3.1(d) or 3.1(e) above (a “Third Party Proposal”), the Block Sale Transferee (A) shall have the right to make a non-public competing proposal to the Board of Directors and may publicly announce that it has made a competing proposal to the Board of Directors so long as such public announcement does not constitute an offer or a solicitation to any recipient thereof and (B) may tender, exchange or otherwise sell or transfer its Company Common Shares (or other equity securities of the Company) to such third party in accordance with the Third Party Proposal; provided, however, that in the case of clauses (y) and (z), the Block Sale Transferee shall be prohibited from participating with, joining in a group with or providing financing to any such third party). [For the avoidance of doubt, any discussions involving the directors nominated by the Block Sale Transferee pursuant to Article 5 hereof (i) at a meeting of the Board of Directors or (ii) with management of the Company, other members of the Board of Directors or any of the Company’s advisors or representatives, in the case of clauses (i) and (ii), while acting in such directors’ capacity as members of the Board of Directors, shall not be deemed to violate any of the provisions requirements of this Article 3.]6Agreement.
Appears in 2 contracts
Samples: Agreement (Starboard Value LP), Shareholder Agreement (Calgon Carbon Corporation)
Standstill Provisions. During (a) TMM, TMMH, MM and each of the Standstill PeriodPrincipal Stockholders covenants to and agrees with KCS that, unless expressly authorized it is specifically invited in writing to do so by a majority of the members of the Board of Directors, acting through a committee of directors that qualify as “independent directors” as defined by applicable stock exchange listing rules [(which term, for this purpose, during the Standstill Period such Person will exclude any directors nominated by the Block Sale Transferee)]1, the Block Sale Transferee shall not, and shall will cause each of its Affiliates not to, directly or indirectly, acting alone or alone, as part of a groupGroup or in concert with others:
(ai) acquire or agree to acquire (other than pursuant to the Acquisition Agreement, the Consulting Agreement, or this Agreement) beneficial ownership of any Voting Securities (or any direct or indirect rights or options to acquire (through purchase, exchange, conversion or otherwise) beneficial ownership of any Voting Securities), if after any such acquisition, such Person and its Affiliates, or such Group would beneficially own aggregate outstanding Voting Securities representing more than 20% of the Total Voting Power;
(ii) make any public announcement with respect to any acquisition or proposal by any TMM Holder, or any Group of which any TMM Holder is a member or acting in concert with, for the acquisition of Voting Securities with respect to any merger, consolidation or business combination involving KCS or its Affiliates or for or with respect to any purchase of a substantial portion of the assets of KCS or its Affiliates, whether or not such proposal might require the making of a public announcement by KCS;
(iii) solicit, initiate, make, or in any way participate in, any “solicitation” of “proxies” to vote any Voting Securities or become a “participant” in any solicitation of any proxy [“election contest” (but without regard to the exclusion set forth as such terms are defined or used in Rule 14a-1(l)(2)(iv) Regulation 14A under the Exchange Act from the definition Act, as such Regulation is currently in effect, disregarding clause (iv) of “solicitation”)]2 to vote Rule 14a-l(l)(2) and including any Company Common Shares (or other equity securities of the Company) with respect to any matter (including, without limitation, any contested exempt solicitation for the election of directors with respect to the Company), other than solicitations or acting as a participant in support of all of the Company’s nominees [including, without limitation, the nominees of the Block Sale Transferee pursuant to Article 5]3Rule 14a-2(b)(l));
(biv) formexcept as approved by the Board of Directors, join call, or vote in favor of a call for, any special meeting of stockholders of KCS;
(v) initiate or in propose any way matter for submission to a vote of stockholders of KCS or participate in a group (the making of, or solicit stockholders for the avoidance of doubtapproval of, the Block Sale Transferee shall not be deemed to have formed, joined in or in any way participated in a group with the Company as a result of the Block Sale Transferee’s execution of this Agreementstockholder proposal;
(vi) with respect to the Company Common Shares (or other equity securities of the Company) or deposit any Company Common Shares (or other equity securities of the Company) in a voting trust or similar arrangement or subject any Company Common Shares (or other equity securities of the Company) to any voting agreement or similar arrangement, or grant any proxy with respect to any Company Common Shares (Voting Securities to any Person not approved in writing by KCS, except for proxies granted to representatives of KCS in connection with the voting of shares at an annual or other equity securities special meeting of the Company) (other than stockholders or to a designated representative of the 1 Note to form: bracketed language to be removed if Block Sale Transferee does not accept the board nomination rights. 2 Note to form: bracketed language to be removed if Block Sale Transferee does not accept the board nomination rights. 3 Note to form: bracketed language to be removed if Block Sale Transferee does not accept the board nomination rights. Company pledgee pursuant to a proxy statement pledge that complies with Section 3.6 of the Company), other than as contemplated by the Governance Agreement or the Stockholders Agreement or the transactions contemplated therebythis Agreement;
(cvii) seek take any action which would be reasonably likely to call, or require KCS to request the calling of, or call a special meeting of the stockholders of the Company, or seek to make, or make, a stockholder proposal (whether pursuant to Rule 14a-8 under the Exchange Act or otherwise) at any meeting of the stockholders of the Company, or make a request for a list of the Company’s stockholders, or[, other than pursuant to the Block Sale Transferee’s nomination rights in accordance with Article 5 of this Agreement,]4 seek election of a representative to the Board of Directors, seek to place a representative on the Board of Directors or seek the removal of any director from the Board of Directors, or otherwise acting alone, or by participating in a group, seek to control or influence the governance or policies of the Company;
(d) effect or seek to effect (including, without limitation, by entering into any discussions, negotiations, agreements or understandings whether or not legally enforceable with any third Person), offer or propose (whether publicly or otherwise) to effect, or cause or participate in, or in any way assist or facilitate any other Person to effect or seek, offer or propose (whether publicly or otherwise) to effect or participate in any acquisition of any Company Common Shares (or other equity securities of the Company) (or Beneficial Ownership thereof) in excess of the Ownership Limitation, except in accordance with Section 2.1; provided, that, for the avoidance of doubt, the Block Sale Transferee is permitted to Transfer to an unaffiliated third party any Company Common Shares (or other equity securities of the Company) Beneficially Owned by the Block Sale Transferee, subject to the provisions of Article 8 hereof, if applicable;
(e) effect or seek to effect (including, without limitation, by entering into any discussions, negotiations, agreements or understandings whether or not legally enforceable with any third Person), offer or propose (whether publicly or otherwise) to effect, or cause or participate in, or in any way assist or facilitate any other Person to effect or seek, offer or propose (whether publicly or otherwise) to effect or participate in (i) any tender offer or exchange offer, merger, acquisition, share exchange or other business combination involving the Company or any of its Subsidiaries, (ii) any recapitalization, restructuring, liquidation, dissolution or other extraordinary transaction with respect to the Company or any of its Subsidiaries or any material portion of its or their businesses, or (iii) any acquisition of any material assets or businesses of the Company or any of its Subsidiaries;
(f) publicly disclose, or cause or, in a material manner, facilitate the public disclosure (including without limitation through the filing by it of any document or report with the SEC or any other governmental agency or any disclosure to any 4 Note to form: bracketed language to be removed if Block Sale Transferee does not accept the board nomination rights. journalist, member of the media or securities analyst) of any intent, purpose, plan or proposal to obtain any waiver, or consent under, or any amendment of, announcement regarding any of the provisions of Section 2.1, matters specified in this Section 3.1, or Article 4 (except as described in Section 4.1) or bring any action to (i) contest the validity of Section 2.1, this Section 3.1 or Article 4, or (ii) seek a release from the restrictions contained in Section 2.1, this Section 3.1 or Article 4;
(g) unless required by law, make or issue or cause to be made or issued any public disclosure, announcement or statement (including without limitation the filing of any document or report with the SEC or any other governmental agency or any disclosure to any journalist, member of the media or securities analyst) (i) in support of any solicitation described in paragraph (a) above (other than solicitations by the Company), (ii) in support of any matter described in paragraph (c) above, (iii) concerning any potential matter described in paragraph (d) above; (iv) concerning any potential matter described in paragraph (e) above; or (v) negatively commenting upon the Company’s corporate strategy, business, corporate activities, board of directors or management (for the avoidance of doubt, making any factual statement about the Company’s corporate strategy, business, corporate activities, board of directors or management shall not be prohibited by this Section 3.1(g)(v)2.l(a)(i)-(xi); or
(hviii) enter into initiate or participate in any discussions, negotiations, agreements negotiations or understandings arrangements with any Person with respect to any of the foregoing or advise, assist or seek to persuade others to take any action third party with respect to any of the foregoing. Notwithstanding the foregoing, (a) [the restrictions or provide any information or take any action designed to advise, assist, encourage or act in Sections 3.1(d), 3.1(e), 3.1(f), 3.1(g)(iii), 3.1(g)(iv), 3.1(g)(v) and 3.1(h) (to the extent it relates to concert with any third party in connection with any of the foregoing;
(ix) shall not apply at disclose publicly any time that (i) intention, plan or arrangement inconsistent with the Company fails to comply in all material respects with its obligations under Article 5 hereof, which failure continues unremedied for a period of 10 business days following receipt by the Company of a written notice from the Block Sale Transferee of such failure or (ii) the Block Sale Transferee has relinquished its nomination rights pursuant to Article 5 and all Block Sale Transferee nominated directors have resigned; or (b)]5 in the event that foregoing;
(x) make any request in a public manner or that would require public disclosure, that KCS (or any of its officers, directors, representatives, employees, attorneys, advisors, agents or Affiliates) to waive, amend or modify any provisions of Section 2.1(a)(i)-(xi); or
(xi) otherwise act, alone or in concert with others, to seek to control or influence materially the management, Board of Directors or policies of KCS.
(b) TMM, TMMH, MM and each of the Principal Stockholders covenants to and agrees with KCS that such Person will promptly notify the Board of Directors determines that of any serious inquiry from any third party regarding any of the Company should engage matters specified in any transaction described in Section 3.1(e)(iSection
(a) or 3.1(e)(ii), (i)-(xi) (which notification shall include the Block Sale Transferee shall be permitted to participate in identity of each such Board of Directors’ approved transaction as a shareholder on third party and the same material terms and conditions as of each such inquiry). The Parties acknowledge that any other shareholder of the Company, (y) the Board of Directors determines that the Company should solicit from one or more Persons or enter into discussions with one or more Persons regarding, or invites any other Person or group to make such inquiry made by a proposal (without similarly inviting the Block Sale Transferee to make a similar proposal) with respect to an acquisition of (i) all or substantially all of the equity securities or assets of the Company or any of its Subsidiaries (by merger, tender offer or otherwise) or (ii) any material assets or businesses of the Company or any of its Subsidiaries, the Block Sale Transferee shall have the right to make a non-public competing proposal to the Board of Directors in compliance with any written procedures generally applicable to Persons making proposals provided by the Company 5 Note to form: enumerated restrictions to be removed if the Block Sale Transferee does not accept the board nomination rights. or the Board of Directors or (z) any third party that is not an Affiliate of the Block Sale Transferee makes a bona fide offer or proposal, with respect to a matter described in Section 3.1(d) or 3.1(e) above (a “Third Party Proposal”), the Block Sale Transferee (A) shall have the right to make a non-public competing proposal to the Board of Directors and may publicly announce that it has made a competing proposal to the Board of Directors so long as such public announcement does not constitute an offer Competitor or a solicitation to any recipient thereof and (B) may tender, exchange or otherwise sell or transfer its Company Common Shares (or other equity securities representative of the Company) to such third party in accordance with the Third Party Proposal; provided, however, that in the case of clauses (y) and (z), the Block Sale Transferee a Competitor shall be prohibited from participating with, joining in regarded as a group with or providing financing to any such third party). [For the avoidance of doubt, any discussions involving the directors nominated by the Block Sale Transferee pursuant to Article 5 hereof (i) at a meeting of the Board of Directors or (ii) with management of the Company, other members of the Board of Directors or any of the Company’s advisors or representatives, in the case of clauses (i) and (ii), while acting in such directors’ capacity as members of the Board of Directors, shall not be deemed to violate any of the provisions of this Article 3.]6serious inquiry.
Appears in 2 contracts
Samples: Stockholders' Agreement (Grupo TMM Sa), Stockholders' Agreement (Grupo TMM Sa)
Standstill Provisions. During (a) Scopia agrees that, from the date of this Agreement until the earliest of (x) the date that is thirty (30) calendar days prior to the deadline for the submission of stockholder nominations for the 2019 Annual Meeting pursuant to the Company’s Amended & Restated Bylaws, (y) the date that is one hundred (100) days prior to the first anniversary of the 2018 Annual Meeting and (z) following the appointment of the initial Scopia Appointee, such time as no Scopia Appointee (or Scopia Replacement Director) is serving on the Board and Scopia has irrevocably notified the Company in writing that it will not seek to fill such vacancy (the “Standstill Period”), unless expressly authorized in writing to do so by a majority of the members of the Board of Directors, acting through a committee of directors that qualify as “independent directors” as defined by applicable stock exchange listing rules [(which term, for this purpose, will exclude any directors nominated by the Block Sale Transferee)]1, the Block Sale Transferee Scopia shall not, and shall cause each of its controlled Affiliates and controlled Associates not to, in each case directly or indirectly, acting alone or as part of a groupin any manner:
(ai) make, or in any way participate engage in any solicitation of any proxy [proxies or consents or become a “participant” in a “solicitation” (but without regard to the exclusion set forth as such terms are defined in Rule 14a-1(l)(2)(iv) Regulation 14A under the Exchange Act from the definition Act) of “solicitation”)]2 to vote any Company Common Shares (proxies or other equity securities of the Company) with respect to any matter consents (including, without limitation, any contested solicitation for the election of directors with respect consents that seeks to the Company), other than solicitations or acting as a participant in support of all of the Company’s nominees [including, without limitation, the nominees of the Block Sale Transferee pursuant to Article 5]3;
(b) form, join in or in any way participate in a group (for the avoidance of doubt, the Block Sale Transferee shall not be deemed to have formed, joined in or in any way participated in a group with the Company as a result of the Block Sale Transferee’s execution of this Agreement) with respect to the Company Common Shares (or other equity securities of the Company) or deposit any Company Common Shares (or other equity securities of the Company) in a voting trust or similar arrangement or subject any Company Common Shares (or other equity securities of the Company) to any voting agreement or similar arrangement, or grant any proxy with respect to any Company Common Shares (or other equity securities of the Company) (other than to a designated representative of the 1 Note to form: bracketed language to be removed if Block Sale Transferee does not accept the board nomination rights. 2 Note to form: bracketed language to be removed if Block Sale Transferee does not accept the board nomination rights. 3 Note to form: bracketed language to be removed if Block Sale Transferee does not accept the board nomination rights. Company pursuant to a proxy statement of the Company), other than as contemplated by the Governance Agreement or the Stockholders Agreement or the transactions contemplated thereby;
(c) seek to call, or to request the calling of, or call a special meeting of the stockholders of the Companystockholders), or seek in each case, with respect to make, or make, a stockholder proposal (whether pursuant to Rule 14a-8 under the Exchange Act or otherwise) at any meeting of the stockholders of the Company, or make a request for a list of the Company’s stockholders, or[, other than pursuant to the Block Sale Transferee’s nomination rights in accordance with Article 5 of this Agreement,]4 seek election of a representative to the Board of Directors, seek to place a representative on the Board of Directors or seek the removal of any director from the Board of Directors, or otherwise acting alone, or by participating in a group, seek to control or influence the governance or policies securities of the Company;
(dii) effect or seek to effect (includingform, without limitation, by entering into any discussions, negotiations, agreements or understandings whether or not legally enforceable with any third Person), offer or propose (whether publicly or otherwise) to effect, or cause or participate in, join or in any way assist or facilitate any other Person to effect or seek, offer or propose (whether publicly or otherwise) to effect or knowingly participate in any acquisition “group” (within the meaning of any Company Common Shares (or other equity securities Section 13(d)(3) of the CompanyExchange Act) with respect to the shares of Common Stock (other than a “group” comprised exclusively of all or Beneficial Ownership thereof) in excess some of the Ownership Limitationentities or persons listed on Exhibit A, except in accordance with Section 2.1; provided, thatand, for the avoidance of doubt, that does not include any other entities or persons); provided, however, that nothing herein shall limit the Block Sale Transferee is permitted ability of an Affiliate of Scopia to Transfer join the “group” with Scopia following the execution of this Agreement, so long as any such Affiliate agrees to an unaffiliated third party any Company Common Shares (or other equity securities of the Company) Beneficially Owned be bound by the Block Sale Transferee, subject to the provisions terms and conditions of Article 8 hereof, if applicablethis Agreement;
(eiii) effect deposit any shares of Common Stock in any voting trust or subject any shares of Common Stock to any arrangement or agreement with respect to the voting of any shares of Common Stock, other than any such voting trust, arrangement or agreement solely among the members of Scopia and otherwise in accordance with this Agreement;
(iv) seek to effect (including, without limitation, by entering into any discussions, negotiations, agreements or understandings whether or not legally enforceable with any third Person), offer or propose (whether publicly or otherwise) to effectsubmit, or cause knowingly encourage any person or participate inentity to seek or submit, nomination(s) in furtherance of a “contested solicitation” for the appointment, election or in any way assist or facilitate any other Person removal of directors with respect to effect the Company or seek, 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 Board; provided, however, that nothing in this Agreement shall prevent Scopia or its Affiliates or Associates from taking actions in furtherance of identifying director candidates in connection with the 2019 Annual Meeting so long as such actions do not create a public disclosure obligation for Scopia or the Company and are undertaken on a basis reasonably designed to be confidential and in accordance in all material respects with Scopia’s normal practices in the circumstances;
(A) make any proposal for consideration by stockholders at any annual or special meeting of stockholders of the Company or through any referendum of stockholders, (B) make any offer or propose proposal (whether publicly with or otherwisewithout conditions) with respect to effect or participate in (i) any tender offer or exchange merger, scheme of arrangement, takeover offer, merger, acquisition, share exchange recapitalization, restructuring, disposition or other business combination involving Scopia (or its Affiliates) and the Company, (C) affirmatively solicit a third party to make an offer or proposal (with or without conditions) with respect to any merger, scheme of arrangements, takeover offer, acquisition, recapitalization, restructuring, disposition or other business combination involving the Company Company, or publicly encourage, initiate or support any of its Subsidiariesthird party in making such an offer or proposal, (iiD) publicly comment on any third party proposal regarding any merger, scheme of arrangement, takeover offer, acquisition, recapitalization, restructuring, liquidationdisposition, dissolution or other extraordinary transaction business combination with respect to the Company or any of its Subsidiaries or any material portion of its or their businesses, by such third party prior to such proposal becoming public or (iiiE) call or seek to call a special meeting of stockholders;
(vi) seek, alone or in concert with others, representation on the Board, except as specifically permitted in Section 1;
(vii) advise, knowingly encourage, knowingly support or knowingly influence any acquisition person or entity with respect to the voting or disposition of any material assets or businesses securities of the Company at any annual or any special meeting of its Subsidiaries;stockholders, except in accordance with Section 1; or
(fviii) publicly disclose, make any request or cause or, in a material manner, facilitate submit any proposal to amend the terms of this Agreement other than through non-public communications with the Company that would not be reasonably determined to trigger public disclosure obligations for any Party.
(including without limitation through the filing by it of any document or report with the SEC or any other governmental agency or any disclosure to any 4 Note to form: bracketed language to be removed if Block Sale Transferee does not accept the board nomination rights. journalist, member of the media or securities analystb) of any intent, purpose, plan or proposal to obtain any waiver, or consent under, or any amendment of, any of the provisions of Section 2.1, this Section 3.1, or Article 4 (except Except as described expressly provided in Section 4.1) 1 or bring any action Section 2(a), Scopia shall be entitled to (i) contest vote the validity shares of Section 2.1, this Section 3.1 or Article 4, or Common Stock that it beneficially owns as it determines in its sole discretion and (ii) seek a release from the restrictions contained in Section 2.1disclose, this Section 3.1 publicly or Article 4;
(g) unless required by lawotherwise, make how it intends to vote or issue or cause to be made or issued any public disclosure, announcement or statement (including without limitation the filing of any document or report with the SEC or any other governmental agency or any disclosure to any journalist, member of the media or securities analyst) (i) in support of any solicitation described in paragraph (a) above (other than solicitations by the Company), (ii) in support of any matter described in paragraph (c) above, (iii) concerning any potential matter described in paragraph (d) above; (iv) concerning any potential matter described in paragraph (e) above; or (v) negatively commenting upon the Company’s corporate strategy, business, corporate activities, board of directors or management (for the avoidance of doubt, making any factual statement about the Company’s corporate strategy, business, corporate activities, board of directors or management shall not be prohibited by this Section 3.1(g)(v)); or
(h) enter into any discussions, negotiations, agreements or understandings with any Person act with respect to any of the foregoing or advise, assist or seek to persuade others to take any action with respect to any of the foregoing. Notwithstanding the foregoing, (a) [the restrictions in Sections 3.1(d), 3.1(e), 3.1(f), 3.1(g)(iii), 3.1(g)(iv), 3.1(g)(v) and 3.1(h) (to the extent it relates to any of the foregoing) shall not apply at any time that (i) the Company fails to comply in all material respects with its obligations under Article 5 hereof, which failure continues unremedied for a period of 10 business days following receipt by the Company of a written notice from the Block Sale Transferee of such failure or (ii) the Block Sale Transferee has relinquished its nomination rights pursuant to Article 5 and all Block Sale Transferee nominated directors have resigned; or (b)]5 in the event that (x) the Board of Directors determines that the Company should engage in any transaction described in Section 3.1(e)(i) or 3.1(e)(ii), the Block Sale Transferee shall be permitted to participate in such Board of Directors’ approved transaction as a shareholder on the same terms and conditions as any other shareholder securities of the Company, (y) any stockholder proposal or other matter to be voted on by the Board of Directors determines that the Company should solicit from one or more Persons or enter into discussions with one or more Persons regarding, or invites any other Person or group to make a proposal (without similarly inviting the Block Sale Transferee to make a similar proposal) with respect to an acquisition of (i) all or substantially all of the equity securities or assets stockholders of the Company or any and the reasons therefor (in each case, subject to Section 1(e)(iii)).
(c) Nothing in this Agreement shall be deemed to limit the exercise in good faith by an Appointed Director of its Subsidiaries (by merger, tender offer or otherwise) or (ii) any material assets or businesses of the Company or any of its Subsidiaries, the Block Sale Transferee shall have the right to make such person’s duties solely in such person’s capacity as a non-public competing proposal to the Board of Directors in compliance with any written procedures generally applicable to Persons making proposals provided by the Company 5 Note to form: enumerated restrictions to be removed if the Block Sale Transferee does not accept the board nomination rights. or the Board of Directors or (z) any third party that is not an Affiliate of the Block Sale Transferee makes a bona fide offer or proposal, with respect to a matter described in Section 3.1(d) or 3.1(e) above (a “Third Party Proposal”), the Block Sale Transferee (A) shall have the right to make a non-public competing proposal to the Board of Directors and may publicly announce that it has made a competing proposal to the Board of Directors so long as such public announcement does not constitute an offer or a solicitation to any recipient thereof and (B) may tender, exchange or otherwise sell or transfer its Company Common Shares (or other equity securities director of the Company) to such third party in accordance with the Third Party Proposal; provided, however, that in the case of clauses (y) and (z), the Block Sale Transferee shall be prohibited from participating with, joining in a group with or providing financing to any such third party). [For the avoidance of doubt, any discussions involving the directors nominated by the Block Sale Transferee pursuant to Article 5 hereof (i) at a meeting of the Board of Directors or (ii) with management of the Company, other members of the Board of Directors or any of the Company’s advisors or representatives, in the case of clauses (i) and (ii), while acting in such directors’ capacity as members of the Board of Directors, shall not be deemed to violate any of the provisions of this Article 3.]6.
Appears in 2 contracts
Samples: Shareholder Agreement (Forest City Realty Trust, Inc.), Shareholder Agreement (Scopia Capital Management Lp)
Standstill Provisions. During the Standstill Period, unless expressly authorized in writing to do so by a majority of the members of Special Committee if it exists or the Board of DirectorsDirectors of the Company (the “Company Board”) if the Special Committee no longer exists, acting through a committee of directors that qualify as “independent directors” as defined by applicable stock exchange listing rules [(which term, for this purpose, will exclude any directors nominated by the Block Sale Transferee)]1, the Block Sale Transferee XX Xxxx shall not, and shall cause its Affiliates affiliates not to, directly or indirectly, acting alone or as part of a group:
(i) Make, submit or declare any offer, proposal or indication of interest to (a) makeacquire a majority of the voting or other equity securities of the Company or a majority of the assets of the Company or (b) engage in any other transaction or series of related transactions that would result in a change of control of the Company (a “Control Transaction”); provided, however, that so long as XX Xxxx complies with Section 3.1(x), XX Xxxx may confidentially submit to the Special Committee if it exists or the Company Board if the Special Committee no longer exists proposals to engage in a Control Transaction;
(ii) Enter into any agreement, arrangement or understanding, or form, join or in any way participate in any solicitation group, with any person (excluding XX Xxxx and any investment fund and investment account managed by XX Xxxx) for the purpose of any proxy [(but without regard to the exclusion set forth in Rule 14a-1(l)(2)(iv) under the Exchange Act from the definition of “solicitation”)]2 to vote any Company Common Shares (acquiring, holding, voting or other equity securities disposing of the Company) with respect ’s equity securities or to any matter (including, without limitation, any contested solicitation for the election of directors otherwise act in concert with respect to the Company), other than solicitations or acting as a participant in support of all of the Company’s nominees [including, without limitation, the nominees of the Block Sale Transferee pursuant to Article 5]3equity securities;
(biii) formMake, join in or in any way participate in a group (for the avoidance in, directly or indirectly, any solicitation of doubtproxies or shareholder written consents to vote, the Block Sale Transferee shall not be deemed or seek to have formed, joined in advise or in influence any way participated in a group with the Company as a result of the Block Sale Transferee’s execution of this Agreement) person or entity with respect to the Company Common Shares (or other equity voting of, any voting securities of the Company) Company in connection with or deposit related in any Company Common Shares (or other equity securities of the Company) in a voting trust or similar arrangement or subject any Company Common Shares (or other equity securities of the Company) way to any voting agreement or similar arrangement, or grant any proxy with respect to any Company Common Shares (or other equity securities of the Company) (other than to a designated representative of the 1 Note to form: bracketed language to be removed if Block Sale Transferee does not accept the board nomination rights. 2 Note to form: bracketed language to be removed if Block Sale Transferee does not accept the board nomination rights. 3 Note to form: bracketed language to be removed if Block Sale Transferee does not accept the board nomination rights. Company pursuant to a proxy statement of the Company), other than as contemplated by the Governance Agreement or the Stockholders Agreement or the transactions contemplated therebyControl Transaction;
(civ) seek to call, or to request the calling of, or call a special meeting of the stockholders of the Company, or seek to make, or make, a stockholder proposal (whether pursuant to Rule 14a-8 under the Exchange Act or otherwise) at any meeting of the stockholders of the Company, or make a request for a list of the Company’s stockholders, or[, other than pursuant to the Block Sale Transferee’s nomination rights in accordance with Article 5 of this Agreement,]4 seek election of a representative to the Board of Directors, seek to place a representative on the Board of Directors or seek the removal of Make any director from the Board of Directors, nomination or otherwise acting alone, or by participating in a group, seek to control or influence the governance or policies of the Company;
(d) effect or seek to effect (including, without limitation, by entering into any discussions, negotiations, agreements or understandings whether or not legally enforceable with any third Person), offer or propose (whether publicly or otherwise) to effect, or cause or participate in, or in any way assist or facilitate any other Person to effect or seek, offer or propose (whether publicly or otherwise) to effect or participate in any acquisition of any Company Common Shares (or other equity securities of the Company) (or Beneficial Ownership thereof) in excess of the Ownership Limitation, except in accordance with Section 2.1; provided, that, for the avoidance of doubt, the Block Sale Transferee is permitted to Transfer to an unaffiliated third party any Company Common Shares (or other equity securities of the Company) Beneficially Owned by the Block Sale Transferee, subject to the provisions of Article 8 hereof, if applicable;
(e) effect or seek to effect (including, without limitation, by entering into any discussions, negotiations, agreements or understandings whether or not legally enforceable with any third Person), offer or propose (whether publicly or otherwise) to effect, or cause or participate in, or in any way assist or facilitate any other Person to effect or seek, offer or propose (whether publicly or otherwise) to effect or participate in (i) any tender offer or exchange offer, merger, acquisition, share exchange or other business combination involving the Company or any of its Subsidiaries, (ii) any recapitalization, restructuring, liquidation, dissolution or other extraordinary transaction shareholder proposal with respect to the Company or any of its Subsidiaries or any material portion of its or their businesses, or (iii) any acquisition of any material assets or businesses of the Company or any of its Subsidiaries;
(f) publicly disclose, or cause or, in a material manner, facilitate the public disclosure (including without limitation through the filing by it of any document or report with the SEC or any other governmental agency or any disclosure to any 4 Note to form: bracketed language to be removed if Block Sale Transferee does not accept the board nomination rights. journalist, member of the media or securities analyst) of any intent, purpose, plan or proposal to obtain any waiver, or consent under, or any amendment of, any of the provisions of Section 2.1, this Section 3.1, or Article 4 (except as described in Section 4.1) or bring any action to (i) contest the validity of Section 2.1, this Section 3.1 or Article 4, or (ii) seek a release from the restrictions contained in Section 2.1, this Section 3.1 or Article 4;
(g) unless required by law, make or issue or cause to be made or issued any public disclosure, announcement or statement (including without limitation the filing of any document or report with the SEC or any other governmental agency or any disclosure to any journalist, member of the media or securities analyst) (i) in support of any solicitation described in paragraph (a) above (other than solicitations by the Company), (ii) in support of any matter described in paragraph (c) above, (iii) concerning any potential matter described in paragraph (d) above; (iv) concerning any potential matter described in paragraph (e) above; or (v) negatively commenting upon the Company’s corporate strategy, business, corporate activities, board of directors or management (for the avoidance of doubt, making any factual statement about the Company’s corporate strategy, business, corporate activities, board of directors or management shall not be prohibited by this Section 3.1(g)(v)); or
(h) enter into any discussions, negotiations, agreements or understandings with any Person with respect to any of the foregoing or advise, assist or seek to persuade others to take any action with respect to any of the foregoing. Notwithstanding the foregoing, (a) [the restrictions in Sections 3.1(d), 3.1(e), 3.1(f), 3.1(g)(iii), 3.1(g)(iv), 3.1(g)(v) and 3.1(h) (to the extent it relates to any of the foregoing) shall not apply at any time that (i) the Company fails to comply in all material respects with its obligations under Article 5 hereof, which failure continues unremedied for a period of 10 business days following receipt by the Company of a written notice from the Block Sale Transferee of such failure or (ii) the Block Sale Transferee has relinquished its nomination rights pursuant to Article 5 and all Block Sale Transferee nominated directors have resigned; or (b)]5 in the event that (x) the Board of Directors determines that the Company should engage in any transaction described in Section 3.1(e)(i) or 3.1(e)(ii), the Block Sale Transferee shall be permitted to participate in such Board of Directors’ approved transaction as a shareholder on the same terms and conditions as any other shareholder of the Company, (y) the Board of Directors determines that the Company should solicit from one or more Persons or enter into discussions with one or more Persons regarding, or invites any other Person or group to make a proposal (without similarly inviting the Block Sale Transferee to make a similar proposal) with respect to an acquisition of (i) all or substantially all of the equity securities or assets of the Company or any of its Subsidiaries (by merger, tender offer or otherwise) or (ii) any material assets or businesses of the Company or any of its Subsidiaries, the Block Sale Transferee shall have the right to make a non-public competing proposal to the Board of Directors in compliance with any written procedures generally applicable to Persons making proposals provided by the Company 5 Note to form: enumerated restrictions to be removed if the Block Sale Transferee does not accept the board nomination rights. or the Board of Directors or (z) any third party that is not an Affiliate of the Block Sale Transferee makes a bona fide offer or proposal, with respect to a matter described in Section 3.1(d) or 3.1(e) above (a “Third Party Proposal”), the Block Sale Transferee (A) shall have the right to make a non-public competing proposal to the Board of Directors and may publicly announce that it has made a competing proposal to the Board of Directors so long as such public announcement does not constitute an offer or a solicitation to any recipient thereof and (B) may tender, exchange or otherwise sell or transfer its Company Common Shares (or other equity securities of the Company) to such third party in accordance with the Third Party Proposal; provided, however, that in the case of clauses (y) and (zso long as XX Xxxx complies with Section 3.1(x), XX Xxxx may make non-public recommendations to the Block Sale Transferee Company’s Nominating and Corporate Governance Committee with respect to such matters; provided, further, that the Company’s Nominating and Corporate Governance Committee shall be prohibited from participating withhave no obligation to nominate or recommend any candidate requested for nomination or recommendation by XX Xxxx;
(v) Make, joining or in any way participate in, directly or indirectly, any solicitation of proxies to vote in favor of the election of any candidate for election to the Company Board nominated by any party other than the Company;
(vi) Take any of the foregoing actions in a group with or providing financing manner that is hostile to any such third party). [For the avoidance of doubt, any discussions involving the directors nominated and unsupported by the Block Sale Transferee pursuant Special Committee if it exists or the Company Board if the Special Committee no longer exists;
(vii) Acquire, offer to Article 5 hereof acquire or agree to acquire, directly or indirectly, by purchase or otherwise, (ia) at a meeting of the Board of Directors or (ii) with management of the Company, other members of the Board of Directors or any an amount of the Company’s advisors common stock that would exceed the 20% Limitation, or representatives(b) any other rights or interests, including without limitation, options, warrants, swaps, derivatives, convertible securities, stock appreciation rights or other rights or instruments, whether real or synthetic, that would increase the aggregate economic or voting interest of XX Xxxx and its affiliates in the case of clauses (i) and (ii), while acting Company in such directors’ capacity as members excess of the Board of Directors20% Limitation;
(viii) Advise, shall not be deemed assist, encourage or provide financing to violate any other person or group undertaking or seeking to undertake any of the provisions foregoing actions;
(ix) Publicly disclose any intention to take any of this Article 3.]6the foregoing actions;
(x) Take any action that would require the Company, the Special Committee if it exists or the Company Board if the Special Committee no longer exists to make any public disclosure regarding any of the foregoing actions or in response thereto; or
(xi) Publicly request the Company, the Special Committee if it exists or the Company Board if the Special Committee no longer exists to amend any of the foregoing provisions.
Appears in 2 contracts
Samples: Standstill Agreement, Standstill Agreement (Exco Resources Inc)
Standstill Provisions. During Each of the Investors agrees that, except as otherwise provided in this Agreement, during the Standstill Period, unless expressly authorized in writing to do so by a majority of the members of the Board of Directors, acting through a committee of directors that qualify as “independent directors” as defined by applicable stock exchange listing rules [(which term, for this purpose, such Investor will exclude any directors nominated by the Block Sale Transferee)]1, the Block Sale Transferee shall not, and shall he or it will cause its each of such Investor’s Affiliates and Associates, agents or other persons acting on such Investor’s behalf not to, directly or indirectly, acting alone or as part of a group:
(a) makeacquire, offer or propose to acquire, or in agree or seek to acquire, by purchase or otherwise, (i) more than five percent (5%) of the outstanding shares of Common Stock, including direct or indirect rights or options to acquire more than five percent (5%) of the outstanding shares of Common Stock or (ii) any way participate in other securities of the Company or any solicitation subsidiary of the Company, including direct or indirect rights or options to acquire any proxy [of the foregoing;
(but without regard b) submit any stockholder proposal (pursuant to Rule 14a-8 promulgated by the exclusion set forth in Rule 14a-1(l)(2)(iv) SEC under the Exchange Act from the definition or otherwise) or any notice of “solicitation”)]2 to vote any Company Common Shares (nomination or other equity securities of the Company) with respect to business for consideration, or nominate any matter (including, without limitation, any contested solicitation candidate for the election of directors with respect to the Company)Board, other than solicitations or acting as a participant set forth in support of all of the Company’s nominees [including, without limitation, the nominees of the Block Sale Transferee pursuant to Article 5]3this Agreement;
(bc) form, join in or in any other way participate in a group (for “partnership, limited partnership, syndicate or other group” within the avoidance meaning of doubt, the Block Sale Transferee shall not be deemed to have formed, joined in or in any way participated in a group with the Company as a result Section 13(d)(3) of the Block Sale Transferee’s execution of this Agreement) Exchange Act with respect to the Company Common Shares (or other equity securities of the Company) Stock or deposit any Company shares of Common Shares (or other equity securities of the Company) Stock in a voting trust or similar arrangement or subject any Company shares of Common Shares (or other equity securities of the Company) Stock to any voting agreement or similar pooling arrangement, other than solely with such Investor’s Affiliates or grant with respect to the Common Stock currently owned or to the extent such a group may be deemed to result with the Company or any proxy of its Affiliates as a result of this Agreement;
(d) solicit proxies, agent designations or written consents of stockholders, or otherwise conduct any nonbinding referendum with respect to Common Stock, or make, or in any way participate in, any “solicitation” of any “proxy” within the meaning of Rule 14a-1 promulgated by the SEC under the Exchange Act to vote, or advise, encourage or influence any person with respect to voting, any shares of Common Stock with respect to any matter, or become a “participant” in any contested “solicitation” for the election of directors with respect to the Company Common Shares (as such terms are defined or other equity securities of used under the Company) (other than to a designated representative of Exchange Act and the 1 Note to form: bracketed language to be removed if Block Sale Transferee does not accept rules promulgated by the board nomination rights. 2 Note to form: bracketed language to be removed if Block Sale Transferee does not accept the board nomination rights. 3 Note to form: bracketed language to be removed if Block Sale Transferee does not accept the board nomination rights. Company pursuant to a proxy statement of the CompanySEC thereunder), other than a “solicitation” or acting as contemplated by a “participant” in support of all of the Governance Agreement or nominees of the Stockholders Agreement or Board at the transactions contemplated thereby2012 Annual Meeting and the 2013 Annual Meeting;
(ce) seek to call, or to request the calling call of, or call a special meeting of the stockholders of the Company, or seek to make, or make, a stockholder proposal (whether pursuant to Rule 14a-8 under the Exchange Act or otherwise) at any meeting of the stockholders of the Company, Company or make a request for a list of the Company’s stockholders, or[, other than pursuant to the Block Sale Transferee’s nomination rights in accordance with Article 5 of this Agreement,]4 seek election of a representative to the Board of Directors, seek to place a representative on the Board of Directors or seek the removal of any director from the Board of Directors, stockholders (or otherwise acting aloneinduce, encourage or by participating in assist any other person to initiate or pursue such a group, seek to control proposal or influence the governance or policies of the Companyrequest);
(df) effect or seek to effect (including, without limitation, by entering into any discussions, negotiations, agreements or understandings whether or not legally enforceable with any third Personperson), offer or propose (whether publicly or otherwise) to effect, or cause or participate in, or in any way assist or facilitate any other Person person to effect or seek, offer or propose (whether publicly or otherwise) to effect or participate in any acquisition of any Company Common Shares (or other equity securities of the Company) (or Beneficial Ownership thereof) in excess of the Ownership Limitation, except in accordance with Section 2.1; provided, that, for the avoidance of doubt, the Block Sale Transferee is permitted to Transfer to an unaffiliated third party any Company Common Shares (or other equity securities of the Company) Beneficially Owned by the Block Sale Transferee, subject to the provisions of Article 8 hereof, if applicable;
(e) effect or seek to effect (including, without limitation, by entering into any discussions, negotiations, agreements or understandings whether or not legally enforceable with any third Person), offer or propose (whether publicly or otherwise) to effect, or cause or participate in, or in any way assist or facilitate any other Person to effect or seek, offer or propose (whether publicly or otherwise) to effect or participate in (i) any acquisition of any material assets or businesses of the Company or any of its subsidiaries, (ii) any tender offer or exchange offer, merger, acquisition, share exchange acquisition or other business combination involving the Company or any of its Subsidiariessubsidiaries, or (iiiii) any recapitalization, restructuring, liquidation, dissolution or other extraordinary transaction with respect to the Company or any of its Subsidiaries or any material portion of its or their businesses, or (iii) any acquisition of any material assets or businesses of the Company or any of its Subsidiariessubsidiaries;
(fg) publicly disclose, or cause or, in a material manner, or facilitate the public disclosure (including without limitation through the filing by it of any document or report with the SEC or any other governmental agency or any disclosure to any 4 Note to form: bracketed language to be removed if Block Sale Transferee does not accept the board nomination rights. journalist, member of the media or securities analyst) of any intent, purpose, plan or proposal to obtain any waiver, or consent under, or any amendment of, any of the provisions of Section 2.1, this Section 3.1, or Article 4 (except as described in Section 4.1) or bring any action to (i) contest the validity of Section 2.1, this Section 3.1 or Article 4, or (ii) seek a release from the restrictions contained in Section 2.1, this Section 3.1 or Article 4;
(g) unless required by law, make or issue or cause to be made or issued any public disclosure, announcement or statement (including without limitation the filing of any document or report with the SEC or any other governmental agency or any disclosure to any journalist, member of the media or securities analyst) regarding any intent, purpose, plan, action or proposal with respect to the Board, the Company, its management, strategies, policies or affairs or any of its securities or assets or this Agreement that is inconsistent with the provisions of this Agreement, including any intent, purpose, plan, action or proposal that is conditioned on, or would require waiver, amendment, or consent under, any provision of this Agreement;
(h) seek election or appointment to, or representation on, or nominate or propose the nomination of any candidate to the Board; or seek the removal of any member of the Board, in each case other than as set forth in this Agreement;
(i) in support (i) knowingly sell, transfer or otherwise dispose of any solicitation described in paragraph shares of Common Stock to any Person who or that is (aor will become upon consummation of such sale, transfer or other disposition) above a beneficial owner of fifteen percent (other than solicitations by 15%) or more of the Company), outstanding Common Stock; or (ii) without the prior written consent of the Company (acting through the Board), on any single day, sell, transfer or otherwise dispose of more than five percent (5%) of the outstanding shares of Common Stock through the public markets;
(j) enter into any arrangements, understandings or agreements (whether written or oral) with, or advise, finance, assist or encourage, any other person that engages, or offers or proposes to engage, in support any of any matter described in paragraph (c) above, (iii) concerning any potential matter described in paragraph (d) above; (iv) concerning any potential matter described in paragraph (e) above; or (v) negatively commenting upon the Company’s corporate strategy, business, corporate activities, board of directors or management (for the avoidance of doubt, making any factual statement about the Company’s corporate strategy, business, corporate activities, board of directors or management shall not be prohibited by this Section 3.1(g)(v))foregoing; or
(hk) enter into any discussions, negotiations, agreements take or understandings with any Person with respect to any of the foregoing cause or advise, induce or assist or seek to persuade others to take any action inconsistent with respect to any of the foregoing. Notwithstanding the foregoing, (a) [the restrictions Nothing in Sections 3.1(d), 3.1(e), 3.1(f), 3.1(g)(iii), 3.1(g)(iv), 3.1(g)(v) and 3.1(h) (this Section 2.2 shall be deemed to the extent it relates to prohibit any of the foregoing) shall not apply at any time that (i) the Company fails to comply in all material respects with its obligations under Article 5 hereof, which failure continues unremedied for a period of 10 business days following receipt by the Company of a written notice Investor Nominee from the Block Sale Transferee of such failure or (ii) the Block Sale Transferee has relinquished its nomination rights pursuant to Article 5 and all Block Sale Transferee nominated directors have resigned; or (b)]5 in the event that (x) the Board of Directors determines that the Company should engage engaging in any transaction described lawful act consistent with his fiduciary duties solely in Section 3.1(e)(i) or 3.1(e)(ii), the Block Sale Transferee shall be permitted to participate in such Board of Directors’ approved transaction his capacity as a shareholder on the same terms and conditions as any other shareholder director of the Company, (y) the Board of Directors determines that the Company should solicit from one or more Persons or enter into discussions with one or more Persons regarding, or invites any other Person or group to make a proposal (without similarly inviting the Block Sale Transferee to make a similar proposal) with respect to an acquisition of (i) all or substantially all of the equity securities or assets of the Company or any of its Subsidiaries (by merger, tender offer or otherwise) or (ii) any material assets or businesses of the Company or any of its Subsidiaries, the Block Sale Transferee shall have the right to make a non-public competing proposal to the Board of Directors in compliance with any written procedures generally applicable to Persons making proposals provided by the Company 5 Note to form: enumerated restrictions to be removed if the Block Sale Transferee does not accept the board nomination rights. or the Board of Directors or (z) any third party that is not an Affiliate of the Block Sale Transferee makes a bona fide offer or proposal, with respect to a matter described in Section 3.1(d) or 3.1(e) above (a “Third Party Proposal”), the Block Sale Transferee (A) shall have the right to make a non-public competing proposal to the Board of Directors and may publicly announce that it has made a competing proposal to the Board of Directors so long as such public announcement does not constitute an offer or a solicitation to any recipient thereof and (B) may tender, exchange or otherwise sell or transfer its Company Common Shares (or other equity securities of the Company) to such third party in accordance with the Third Party Proposal; provided, however, that in the case of clauses (y) and (z), the Block Sale Transferee shall be prohibited from participating with, joining in a group with or providing financing to any such third party). [For the avoidance of doubt, any discussions involving the directors nominated by the Block Sale Transferee pursuant to Article 5 hereof (i) at a meeting of the Board of Directors or (ii) with management of the Company, other members of the Board of Directors or any of the Company’s advisors or representatives, in the case of clauses (i) and (ii), while acting in such directors’ capacity as members of the Board of Directors, shall not be deemed to violate any of the provisions of this Article 3.]6.
Appears in 2 contracts
Samples: Settlement Agreement (InfuSystem Holdings, Inc), Credit Agreement (InfuSystem Holdings, Inc)
Standstill Provisions. During (a) The Investor Group Parties agree that, from the date of this Agreement until the date that is three years after the Company’s 2023 annual meeting of stockholders (through such time, “Standstill Period, unless expressly authorized in writing to do so by a majority of the members of the Board of Directors, acting through a committee of directors that qualify as “independent directors” as defined by applicable stock exchange listing rules [(which term, for this purpose, will exclude any directors nominated by the Block Sale Transferee)]1”), the Block Sale Transferee Investor Group Parties shall not, and shall cause its each of their controlled Affiliates and Associates not to, directly or indirectly, acting alone or as part of a groupto in any manner:
(ai) make, or in any way participate engage in any solicitation of any proxy [proxies or become a “participant” in a “solicitation” (but without regard to the exclusion set forth as such terms are defined in Rule 14a-1(l)(2)(iv) Regulation 14A under the Exchange Act from the definition Act) of “solicitation”)]2 to vote any Company Common Shares (or other equity securities of the Company) with respect to any matter proxies (including, without limitation, any solicitation of consents that seeks to call a special meeting of stockholders), in each case, with respect to securities of the Company;
(ii) form, join, or in any way knowingly participate in any “group” (within the meaning of Section 13(d)(3) of the Exchange Act) with respect to the shares of Common Stock (other than a “group” that includes all or some of the Investor Group Parties but does not include any other entities or persons that are not in the Investor Group Parties as of the date hereof; provided, however, that nothing herein shall limit the ability of an Affiliate of the Investor Group Parties to join such a “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;
(iii) deposit any shares of Common Stock in any voting trust or subject any shares of Common Stock to any arrangement or agreement with respect to the voting of any shares of Common Stock, other than any such voting trust, arrangement or agreement solely among the Investor Group Parties and otherwise in accordance with this Agreement;
(iv) seek or submit, or knowingly encourage any person or entity to seek or submit, nomination(s) in furtherance of a “contested solicitation solicitation” for the appointment, election or removal of directors with respect to the Company)Company or seek, or knowingly encourage or take any other than solicitations or acting as a participant in support of all of the Company’s nominees [including, without limitationaction with respect to, the nominees appointment, election or removal of the Block Sale Transferee pursuant to Article 5]3;
(b) form, join in or in any way participate in a group (for the avoidance of doubt, the Block Sale Transferee shall not be deemed to have formed, joined in or in any way participated in a group with the Company as a result of the Block Sale Transferee’s execution of this Agreement) with respect to the Company Common Shares (or other equity securities of the Company) or deposit any Company Common Shares (or other equity securities of the Company) in a voting trust or similar arrangement or subject any Company Common Shares (or other equity securities of the Company) to any voting agreement or similar arrangement, or grant any proxy with respect to any Company Common Shares (or other equity securities of the Company) (other than to a designated representative of the 1 Note to form: bracketed language to be removed if Block Sale Transferee does not accept the board nomination rights. 2 Note to form: bracketed language to be removed if Block Sale Transferee does not accept the board nomination rights. 3 Note to form: bracketed language to be removed if Block Sale Transferee does not accept the board nomination rights. Company pursuant to a proxy statement of the Company), other than as contemplated by the Governance Agreement or the Stockholders Agreement or the transactions contemplated thereby;
(c) seek to call, or to request the calling of, or call a special meeting of the stockholders directors of the Company, or seek in each case in opposition to make, or make, a stockholder proposal (whether pursuant to Rule 14a-8 under the Exchange Act or otherwise) at any meeting recommendation of the stockholders of the Company, or make a request for a list of the Company’s stockholders, or[, other than pursuant to the Block Sale Transferee’s nomination rights in accordance with Article 5 of this Agreement,]4 seek election of a representative to the Board of Directors, seek to place a representative on the Board of Directors or seek the removal of any director from the Board of Directors, or otherwise acting alone, or by participating in a group, seek to control or influence the governance or policies of the CompanyBoard;
(dv) effect seek, alone or seek to effect in concert with others, representation on the Board;
(includingvi) (A) make any proposal for consideration by stockholders at any Applicable Meeting, without limitation, by entering into or solicit the written consents of stockholders in lieu of any discussions, negotiations, agreements annual or understandings whether or not legally enforceable special meeting in connection with any third Person)proposal, offer or propose (whether publicly or otherwise) to effect, or cause or participate in, or in any way assist or facilitate any other Person to effect or seek, offer or propose (whether publicly or otherwise) to effect or participate in any acquisition of any Company Common Shares (or other equity securities of the Company) (or Beneficial Ownership thereof) in excess of the Ownership Limitation, except in accordance with Section 2.1; provided, thatincluding, for the avoidance of doubt, any election of candidates to the Block Sale Transferee is permitted Board if such nomination has not been previously approved by the Board or any proposal to Transfer amend the Company’s Certificate of Incorporation or By-Laws, (B) make any offer or proposal (with or without conditions) with respect to an unaffiliated any merger, tender (or exchange) offer, acquisition, recapitalization, restructuring, disposition or other business combination involving the Investor Group Parties and the Company, (C) solicit a third party to make an offer or proposal (with or without conditions) with respect to any Company Common Shares merger, tender (or exchange) offer, acquisition, recapitalization, restructuring, disposition or other equity business combination involving the Company, or knowingly publicly encourage, initiate or support any third party in making such an offer or proposal, or (D) call or seek to call a special meeting of stockholders of the Company;
(vii) advise, knowingly encourage, knowingly support or knowingly influence any person or entity with respect to the voting or disposition of any securities of the Company) Beneficially Owned by the Block Sale Transferee, subject Company at any Applicable Meeting with respect to the provisions appointment, election or removal of Article 8 hereof, if applicabledirector(s);
(eviii) effect acquire, announce an intention to acquire, offer or seek propose to effect acquire, or agree to acquire, by purchase or otherwise, any security of the Company, including any stock, option, warrant, convertible security, stock appreciation right or other similar right (including, without limitation, by entering into any discussions, negotiations, agreements put or understandings whether call option or not legally enforceable with any third Person), offer or propose (whether publicly or otherwise“swap” transaction) to effect, or cause or participate in, or in any way assist or facilitate any other Person to effect or seek, offer or propose (whether publicly or otherwise) to effect or participate in (i) any tender offer or exchange offer, merger, acquisition, share exchange or other business combination involving the Company or any of its Subsidiaries, (ii) any recapitalization, restructuring, liquidation, dissolution or other extraordinary transaction with respect to the Company any security (other than a broad-based market basket or any of its Subsidiaries or any material portion of its or their businesses, or index);
(iiiix) any acquisition submit a formal demand to inspect a copy of any material assets or businesses books and records of the Company under the Delaware General Corporation Law or any of its Subsidiaries;
(f) publicly disclose, equivalent state or cause or, in a material manner, facilitate the public disclosure (including without limitation through the filing by it of any document or report with the SEC or any other governmental agency or any disclosure to any 4 Note to form: bracketed language to be removed if Block Sale Transferee does not accept the board nomination rights. journalist, member of the media or securities analyst) of any intent, purpose, plan or proposal to obtain any waiver, or consent under, or any amendment of, any of the provisions of Section 2.1, this Section 3.1, or Article 4 (except as described in Section 4.1) or bring any action to (i) contest the validity of Section 2.1, this Section 3.1 or Article 4, or (ii) seek a release from the restrictions contained in Section 2.1, this Section 3.1 or Article 4;
(g) unless required by federal law, make or issue or cause to be made or issued any public disclosure, announcement or statement (including without limitation the filing of any document or report with the SEC or any other governmental agency or any disclosure to any journalist, member of the media or securities analyst) (i) in support of any solicitation described in paragraph (a) above (other than solicitations by the Company), (ii) in support of any matter described in paragraph (c) above, (iii) concerning any potential matter described in paragraph (d) above; (iv) concerning any potential matter described in paragraph (e) above; or (v) negatively commenting upon the Company’s corporate strategy, business, corporate activities, board of directors or management (for the avoidance of doubt, making any factual statement about the Company’s corporate strategy, business, corporate activities, board of directors or management shall not be prohibited by this Section 3.1(g)(v)); or
(h) enter into any discussions, negotiations, agreements or understandings with any Person with respect to any of the foregoing or advise, assist or seek to persuade others to take any action with respect to any of the foregoing. Notwithstanding the foregoing, (a) [the restrictions in Sections 3.1(d), 3.1(e), 3.1(f), 3.1(g)(iii), 3.1(g)(iv), 3.1(g)(v) and 3.1(h) (to the extent it relates to any of the foregoing) shall not apply at any time that (i) the Company fails to comply in all material respects with its obligations under Article 5 hereof, which failure continues unremedied for a period of 10 business days following receipt by the Company of a written notice from the Block Sale Transferee of such failure or (ii) the Block Sale Transferee has relinquished its nomination rights pursuant to Article 5 and all Block Sale Transferee nominated directors have resigned; or (b)]5 in the event that (x) make any request or submit any proposal to amend the Board terms of Directors determines that the Company should engage in any transaction described in Section 3.1(e)(i) or 3.1(e)(ii), the Block Sale Transferee shall be permitted to participate in such Board of Directors’ approved transaction as a shareholder on the same terms and conditions as any this Agreement other shareholder of the Company, (y) the Board of Directors determines that the Company should solicit from one or more Persons or enter into discussions with one or more Persons regarding, or invites any other Person or group to make a proposal (without similarly inviting the Block Sale Transferee to make a similar proposal) with respect to an acquisition of (i) all or substantially all of the equity securities or assets of the Company or any of its Subsidiaries (by merger, tender offer or otherwise) or (ii) any material assets or businesses of the Company or any of its Subsidiaries, the Block Sale Transferee shall have the right to make a than through non-public competing proposal to communication with the Board of Directors in compliance with any written procedures generally applicable to Persons making proposals provided by the Company 5 Note to form: enumerated restrictions to be removed if the Block Sale Transferee does not accept the board nomination rights. Company’s management or the Board of Directors or (z) any third party that is not an Affiliate of the Block Sale Transferee makes a bona fide offer or proposal, with respect to a matter described in Section 3.1(d) or 3.1(e) above (a “Third Party Proposal”), the Block Sale Transferee (A) shall have the right to make a non-public competing proposal to the Board of Directors and may publicly announce that it has made a competing proposal to the Board of Directors so long as such public announcement does not constitute an offer or a solicitation to any recipient thereof and (B) may tender, exchange or otherwise sell or transfer its Company Common Shares (or other equity securities of the Company) to such third party in accordance with the Third Party Proposal; provided, however, that in the case of clauses (y) and (z), the Block Sale Transferee shall be prohibited from participating with, joining in a group with or providing financing to any such third party). [For the avoidance of doubt, any discussions involving the directors nominated by the Block Sale Transferee pursuant to Article 5 hereof (i) at a meeting of the Board of Directors or (ii) with management of the Company, other members of the Board of Directors or any of the Company’s advisors or representatives, in the case of clauses (i) and (ii), while acting in such directors’ capacity as members of the Board of Directors, shall would not be deemed reasonably expected to violate trigger an obligation for any of the provisions of this Article 3.]6Party to publicly disclose such communication.
Appears in 2 contracts
Samples: Settlement & Cooperation Agreement (Pasithea Therapeutics Corp.), Settlement and Cooperation Agreement (Camac Fund, LP)
Standstill Provisions. During (a) Each member of Starboard agrees that, from the date of this Agreement until the earlier of (i) the date that is fifteen (15) business days prior to the deadline for the submission of stockholder nominations for the 2013 Annual Meeting pursuant to the Company’s bylaws or (ii) the date that is one-hundred (100) days prior to the first anniversary of the 2012 Annual Meeting (the “Standstill Period”) neither it nor any of its Affiliates or Associates (as such terms are defined in Regulation 14A under the Securities Exchange Act of 1934, unless expressly authorized in writing to do so by a majority of as amended or the members of rules or regulations thereunder (the Board of Directors, acting through a committee of directors that qualify as “independent directors” as defined by applicable stock exchange listing rules [(which term, for this purpose, will exclude any directors nominated by the Block Sale Transferee)]1, the Block Sale Transferee shall notExchange Act”)) under its control or direction will, and shall it will cause each of its Affiliates and Associates under its control not to, directly or indirectly, acting alone or as part of a groupin any manner:
(ai) makealone or with others, control, seek to control or seek representation on the Board (except as specifically contemplated in Section 1);
(ii) engage in any solicitation of proxies or consents or become a “participant” in a “solicitation” as such terms are defined in Regulation 14A under the Exchange Act of proxies or consents (including, without limitation, any solicitation of consents to call a special meeting of stockholders), in each case, with respect to securities of the Company;
(iii) seek to advise, encourage, support or influence any person with respect to the voting or disposition of any securities of the Company at any annual or special meeting of stockholders, except in accordance with Section 1;
(iv) seek or encourage any person to submit nominations in furtherance of a “contested solicitation,” or take other applicable action, for the election or removal of directors with respect to the Company;
(A) make any proposal for consideration by stockholders at any annual or special meeting of stockholders of the Company, (B) make any offer or proposal (with or without conditions) with respect to a merger, acquisition, disposition or other business combination involving Starboard and the Company, or encourage, initiate or support any other third party in any such related activity or (C) make any public communication in opposition to any Company acquisition or disposition activity approved by the Board;
(vi) form, join or in any way participate in any solicitation “group” (within the meaning of any proxy [(but without regard to the exclusion set forth in Rule 14a-1(l)(2)(ivSection 13(d)(3) under of the Exchange Act from the definition of “solicitation”)]2 to vote any Company Common Shares (or other equity securities of the Company) with respect to any matter (including, without limitation, any contested solicitation for the election of directors with respect to the Company), other than solicitations or acting as a participant in support of all of the Company’s nominees [including, without limitation, the nominees of the Block Sale Transferee pursuant to Article 5]3;
(b) form, join in or in any way participate in a group (for the avoidance of doubt, the Block Sale Transferee shall not be deemed to have formed, joined in or in any way participated in a group with the Company as a result of the Block Sale Transferee’s execution of this AgreementAct) with respect to the Company Common Shares (or other equity securities of the Company) or deposit any Company Common Shares (or other equity securities of the Company) in a voting trust or similar arrangement or subject any Company Common Shares (or other equity securities of the Company) to any voting agreement or similar arrangement, or grant any proxy with respect to any Company Common Shares (or other equity securities of the Company) Stock (other than to a designated representative “group” that includes all or some lesser number of the 1 Note to form: bracketed language to be removed if Block Sale Transferee persons identified as part of Starboard on Exhibit A attached hereto, but does not accept the board nomination rights. 2 Note to form: bracketed language to be removed if Block Sale Transferee does include any other members who are not accept the board nomination rights. 3 Note to form: bracketed language to be removed if Block Sale Transferee does not accept the board nomination rights. Company pursuant to a proxy statement currently identified as part of Starboard as of the Companydate hereof), other than as contemplated by the Governance Agreement or the Stockholders Agreement or the transactions contemplated thereby;
(c) seek to call, or to request the calling of, or call a special meeting of the stockholders of the Company, or seek to make, or make, a stockholder proposal (whether pursuant to Rule 14a-8 under the Exchange Act or otherwise) at any meeting of the stockholders of the Company, or make a request for a list of the Company’s stockholders, or[, other than pursuant to the Block Sale Transferee’s nomination rights in accordance with Article 5 of this Agreement,]4 seek election of a representative to the Board of Directors, seek to place a representative on the Board of Directors or seek the removal of any director from the Board of Directors, or otherwise acting alone, or by participating in a group, seek to control or influence the governance or policies of the Company;
(d) effect or seek to effect (including, without limitation, by entering into any discussions, negotiations, agreements or understandings whether or not legally enforceable with any third Person), offer or propose (whether publicly or otherwise) to effect, or cause or participate in, or in any way assist or facilitate any other Person to effect or seek, offer or propose (whether publicly or otherwise) to effect or participate in any acquisition of any Company Common Shares (or other equity securities of the Company) (or Beneficial Ownership thereof) in excess of the Ownership Limitation, except in accordance with Section 2.1; provided, that, for the avoidance of doubt, the Block Sale Transferee is permitted to Transfer to an unaffiliated third party any Company Common Shares (or other equity securities of the Company) Beneficially Owned by the Block Sale Transferee, subject to the provisions of Article 8 hereof, if applicable;
(e) effect or seek to effect (including, without limitation, by entering into any discussions, negotiations, agreements or understandings whether or not legally enforceable with any third Person), offer or propose (whether publicly or otherwise) to effect, or cause or participate in, or in any way assist or facilitate any other Person to effect or seek, offer or propose (whether publicly or otherwise) to effect or participate in (i) any tender offer or exchange offer, merger, acquisition, share exchange or other business combination involving the Company or any of its Subsidiaries, (ii) any recapitalization, restructuring, liquidation, dissolution or other extraordinary transaction with respect to the Company or any of its Subsidiaries or any material portion of its or their businesses, or (iii) any acquisition of any material assets or businesses of the Company or any of its Subsidiaries;
(f) publicly disclose, or cause or, in a material manner, facilitate the public disclosure (including without limitation through the filing by it of any document or report with the SEC or any other governmental agency or any disclosure to any 4 Note to form: bracketed language to be removed if Block Sale Transferee does not accept the board nomination rights. journalist, member of the media or securities analyst) of any intent, purpose, plan or proposal to obtain any waiver, or consent under, or any amendment of, any of the provisions of Section 2.1, this Section 3.1, or Article 4 (except as described in Section 4.1) or bring any action to (i) contest the validity of Section 2.1, this Section 3.1 or Article 4, or (ii) seek a release from the restrictions contained in Section 2.1, this Section 3.1 or Article 4;
(g) unless required by law, make or issue or cause to be made or issued any public disclosure, announcement or statement (including without limitation the filing of any document or report with the SEC or any other governmental agency or any disclosure to any journalist, member of the media or securities analyst) (i) in support of any solicitation described in paragraph (a) above (other than solicitations by the Company), (ii) in support of any matter described in paragraph (c) above, (iii) concerning any potential matter described in paragraph (d) above; (iv) concerning any potential matter described in paragraph (e) above; or (v) negatively commenting upon the Company’s corporate strategy, business, corporate activities, board of directors or management (for the avoidance of doubt, making any factual statement about the Company’s corporate strategy, business, corporate activities, board of directors or management shall not be prohibited by this Section 3.1(g)(v)); or
(h) enter into any discussions, negotiations, agreements or understandings with any Person with respect to any of the foregoing or advise, assist or seek to persuade others to take any action with respect to any of the foregoing. Notwithstanding the foregoing, (a) [the restrictions in Sections 3.1(d), 3.1(e), 3.1(f), 3.1(g)(iii), 3.1(g)(iv), 3.1(g)(v) and 3.1(h) (to the extent it relates to any of the foregoing) shall not apply at any time that (i) the Company fails to comply in all material respects with its obligations under Article 5 hereof, which failure continues unremedied for a period of 10 business days following receipt by the Company of a written notice from the Block Sale Transferee of such failure or (ii) the Block Sale Transferee has relinquished its nomination rights pursuant to Article 5 and all Block Sale Transferee nominated directors have resigned; or (b)]5 in the event that (x) the Board of Directors determines that the Company should engage in any transaction described in Section 3.1(e)(i) or 3.1(e)(ii), the Block Sale Transferee shall be permitted to participate in such Board of Directors’ approved transaction as a shareholder on the same terms and conditions as any other shareholder of the Company, (y) the Board of Directors determines that the Company should solicit from one or more Persons or enter into discussions with one or more Persons regarding, or invites any other Person or group to make a proposal (without similarly inviting the Block Sale Transferee to make a similar proposal) with respect to an acquisition of (i) all or substantially all of the equity securities or assets of the Company or any of its Subsidiaries (by merger, tender offer or otherwise) or (ii) any material assets or businesses of the Company or any of its Subsidiaries, the Block Sale Transferee shall have the right to make a non-public competing proposal to the Board of Directors in compliance with any written procedures generally applicable to Persons making proposals provided by the Company 5 Note to form: enumerated restrictions to be removed if the Block Sale Transferee does not accept the board nomination rights. or the Board of Directors or (z) any third party that is not an Affiliate of the Block Sale Transferee makes a bona fide offer or proposal, with respect to a matter described in Section 3.1(d) or 3.1(e) above (a “Third Party Proposal”), the Block Sale Transferee (A) shall have the right to make a non-public competing proposal to the Board of Directors and may publicly announce that it has made a competing proposal to the Board of Directors so long as such public announcement does not constitute an offer or a solicitation to any recipient thereof and (B) may tender, exchange or otherwise sell or transfer its Company Common Shares (or other equity securities of the Company) to such third party in accordance with the Third Party Proposal; provided, however, that nothing herein shall limit the ability of an Affiliate of Starboard to join the “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;
(vii) deposit any Common Stock in any voting trust or subject any Common Stock to any arrangement or agreement with respect to the case voting of clauses any Common Stock, other than any such voting trust, arrangement or agreement solely among the members of Starboard; or
(yviii) and make any request or submit any proposal to amend the terms of this Agreement other than through non-public communications with the Company that would not be reasonably determined to trigger public disclosure obligations for any Party.
(zb) Except as expressly provided in Section 1 or Section 2(a), the Block Sale Transferee each member of Starboard shall be prohibited from participating with, joining in a group with or providing financing to any such third party). [For the avoidance of doubt, any discussions involving the directors nominated by the Block Sale Transferee pursuant to Article 5 hereof entitled to:
(i) at a meeting vote their shares on any other proposal duly brought before the 2012 Annual Meeting, or otherwise vote as each member of the Board of Directors or Starboard determines in its sole discretion; or
(ii) disclose, publicly or otherwise, how it intends to vote or act with management respect to any securities of the Company, any stockholder proposal or other members matter to be voted on by the stockholders of the Board Company and the reasons therefore; provided that, as applicable, all such activity is in compliance with the requirements of Directors or any of the Company’s advisors or representatives, in the case of clauses (i) Section 1 and (iiSection 2(a), while acting in such directors’ capacity as members of the Board of Directors, shall not be deemed to violate any of the provisions of this Article 3.]6.
Appears in 2 contracts
Samples: Shareholder Agreement (Starboard Value LP), Shareholder Agreement (Integrated Device Technology Inc)
Standstill Provisions. During (a) Starboard agrees that, from the date of this Agreement until the earlier of (i) the date that is fifteen (15) business days prior to the deadline for the submission of stockholder nominations for the 2014 Annual Meeting pursuant to the Company’s bylaws or (ii) the date that is one hundred (100) days prior to the first anniversary of the 2013 Annual Meeting (the “Standstill Period”), unless expressly authorized in writing to do so by a majority neither it nor any of the members of the Board of Directors, acting through a committee of directors that qualify as “independent directors” as defined by applicable stock exchange listing rules [(which term, for this purpose, will exclude any directors nominated by the Block Sale Transferee)]1, the Block Sale Transferee shall notits Affiliates or Associates under its control or direction will, and shall it will cause its each of such Affiliates and Associates not to, directly or indirectly, acting alone or as part of a groupin any manner:
(ai) makeengage in any solicitation of proxies or consents or become a “participant” in a “solicitation” as such terms are defined in Regulation 14A under the Exchange Act of proxies or consents (including, without limitation, any solicitation of consents that improperly seeks to call a special meeting of stockholders), in each case, with respect to securities of the Company;
(ii) form, join or in any way participate in any solicitation “group” (within the meaning of any proxy [(but without regard to the exclusion set forth in Rule 14a-1(l)(2)(ivSection 13(d)(3) under of the Exchange Act from the definition of “solicitation”)]2 to vote any Company Common Shares (or other equity securities of the CompanyAct) with respect to the Common Stock (other than a “group” that includes all or some of the persons identified on Exhibit A, but does not include any matter other entities or persons not identified on Exhibit A as of the date hereof); provided, however, that nothing herein shall limit the ability of an Affiliate of Starboard to join the “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;
(includingiii) deposit any Common Stock in any voting trust or subject any Common Stock to any arrangement or agreement with respect to the voting of any Common Stock, without limitationother than any such voting trust, arrangement or agreement solely among the members of Starboard and otherwise in accordance with this Agreement;
(iv) seek or encourage any person to submit nominations in furtherance of a “contested solicitation solicitation” for the election or removal of directors with respect to the Company)Company or seek, encourage or take any other than solicitations or acting as a participant in support of all of the Company’s nominees [including, without limitation, the nominees of the Block Sale Transferee pursuant to Article 5]3;
(b) form, join in or in any way participate in a group (for the avoidance of doubt, the Block Sale Transferee shall not be deemed to have formed, joined in or in any way participated in a group with the Company as a result of the Block Sale Transferee’s execution of this Agreement) action with respect to the Company Common Shares (election or other equity securities removal of the Company) or deposit any Company Common Shares (or other equity securities of the Company) in a voting trust or similar arrangement or subject any Company Common Shares (or other equity securities of the Company) to any voting agreement or similar arrangement, or grant any proxy with respect to any Company Common Shares (or other equity securities of the Company) (other than to a designated representative of the 1 Note to form: bracketed language to be removed if Block Sale Transferee does not accept the board nomination rights. 2 Note to form: bracketed language to be removed if Block Sale Transferee does not accept the board nomination rights. 3 Note to form: bracketed language to be removed if Block Sale Transferee does not accept the board nomination rights. Company pursuant to a proxy statement of the Company), other than as contemplated by the Governance Agreement or the Stockholders Agreement or the transactions contemplated therebydirectors;
(cA) seek to call, make any proposal for consideration by stockholders at any annual or to request the calling of, or call a special meeting of the stockholders of the Company, (B) make any offer or seek to make, or make, a stockholder proposal (whether pursuant with or without conditions) with respect to Rule 14a-8 under the Exchange Act any merger, acquisition, recapitalization, restructuring, disposition or otherwise) at any meeting of the stockholders of other business combination involving the Company, or encourage, initiate or support any other third party in any such related activity or (C) make a request for a list of any public communication in opposition to any Company acquisition or disposition activity approved by the Company’s stockholders, or[, other than pursuant to the Block Sale Transferee’s nomination rights in accordance with Article 5 of this Agreement,]4 seek election of a representative to the Board of Directors, seek to place a representative on the Board of Directors or seek the removal of any director from the Board of Directors, or otherwise acting alone, or by participating in a group, seek to control or influence the governance or policies of the CompanyBoard;
(dvi) effect seek, alone or in concert with others, representation on the Board, except as specifically contemplated in Section 1;
(vii) seek to effect (includingadvise, without limitationencourage, by entering into support or influence any discussions, negotiations, agreements person with respect to the voting or understandings whether or not legally enforceable with any third Person), offer or propose (whether publicly or otherwise) to effect, or cause or participate in, or in any way assist or facilitate any other Person to effect or seek, offer or propose (whether publicly or otherwise) to effect or participate in any acquisition disposition of any Company Common Shares (or other equity securities of the Company) (Company at any annual or Beneficial Ownership thereof) in excess special meeting of the Ownership Limitationstockholders, except in accordance with Section 2.11; providedor
(viii) make any request or submit any proposal to amend the terms of this Agreement other than through non-public communications with the Company that would not be reasonably determined to trigger public disclosure obligations for any Party.
(b) Except as expressly provided in Section 1 or Section 2(a), thateach member of Starboard shall be entitled to:
(i) vote their shares on any other proposal duly brought before the 2013 Annual Meeting, for the avoidance or otherwise vote as each member of doubtStarboard determines in its sole discretion; or
(ii) disclose, the Block Sale Transferee is permitted publicly or otherwise, how it intends to Transfer vote or act with respect to an unaffiliated third party any Company Common Shares (or other equity securities of the Company) Beneficially Owned , any stockholder proposal or other matter to be voted on by the Block Sale Transferee, subject to the provisions of Article 8 hereof, if applicable;
(e) effect or seek to effect (including, without limitation, by entering into any discussions, negotiations, agreements or understandings whether or not legally enforceable with any third Person), offer or propose (whether publicly or otherwise) to effect, or cause or participate in, or in any way assist or facilitate any other Person to effect or seek, offer or propose (whether publicly or otherwise) to effect or participate in (i) any tender offer or exchange offer, merger, acquisition, share exchange or other business combination involving the Company or any of its Subsidiaries, (ii) any recapitalization, restructuring, liquidation, dissolution or other extraordinary transaction with respect to the Company or any of its Subsidiaries or any material portion of its or their businesses, or (iii) any acquisition of any material assets or businesses stockholders of the Company or any of its Subsidiaries;
(f) publicly discloseand the reasons therefore; provided that, or cause oras applicable, in a material manner, facilitate the public disclosure (including without limitation through the filing by it of any document or report with the SEC or any other governmental agency or any disclosure to any 4 Note to form: bracketed language to be removed if Block Sale Transferee does not accept the board nomination rights. journalist, member of the media or securities analyst) of any intent, purpose, plan or proposal to obtain any waiver, or consent under, or any amendment of, any of the provisions of Section 2.1, this Section 3.1, or Article 4 (except as described in Section 4.1) or bring any action to (i) contest the validity of Section 2.1, this Section 3.1 or Article 4, or (ii) seek a release from the restrictions contained in Section 2.1, this Section 3.1 or Article 4;
(g) unless required by law, make or issue or cause to be made or issued any public disclosure, announcement or statement (including without limitation the filing of any document or report with the SEC or any other governmental agency or any disclosure to any journalist, member of the media or securities analyst) (i) in support of any solicitation described in paragraph (a) above (other than solicitations by the Company), (ii) in support of any matter described in paragraph (c) above, (iii) concerning any potential matter described in paragraph (d) above; (iv) concerning any potential matter described in paragraph (e) above; or (v) negatively commenting upon the Company’s corporate strategy, business, corporate activities, board of directors or management (for the avoidance of doubt, making any factual statement about the Company’s corporate strategy, business, corporate activities, board of directors or management shall not be prohibited by this Section 3.1(g)(v)); or
(h) enter into any discussions, negotiations, agreements or understandings with any Person with respect to any of the foregoing or advise, assist or seek to persuade others to take any action with respect to any of the foregoing. Notwithstanding the foregoing, (a) [the restrictions in Sections 3.1(d), 3.1(e), 3.1(f), 3.1(g)(iii), 3.1(g)(iv), 3.1(g)(v) and 3.1(h) (to the extent it relates to any of the foregoing) shall not apply at any time that (i) the Company fails to comply in all material respects with its obligations under Article 5 hereof, which failure continues unremedied for a period of 10 business days following receipt by the Company of a written notice from the Block Sale Transferee of such failure or (ii) the Block Sale Transferee has relinquished its nomination rights pursuant to Article 5 and all Block Sale Transferee nominated directors have resigned; or (b)]5 in the event that (x) the Board of Directors determines that the Company should engage in any transaction described in Section 3.1(e)(i) or 3.1(e)(ii), the Block Sale Transferee shall be permitted to participate in such Board of Directors’ approved transaction as a shareholder on the same terms and conditions as any other shareholder of the Company, (y) the Board of Directors determines that the Company should solicit from one or more Persons or enter into discussions with one or more Persons regarding, or invites any other Person or group to make a proposal (without similarly inviting the Block Sale Transferee to make a similar proposal) with respect to an acquisition of (i) all or substantially all of the equity securities or assets of the Company or any of its Subsidiaries (by merger, tender offer or otherwise) or (ii) any material assets or businesses of the Company or any of its Subsidiaries, the Block Sale Transferee shall have the right to make a non-public competing proposal to the Board of Directors activity is in compliance with any written procedures generally applicable to Persons making proposals provided by the Company 5 Note to form: enumerated restrictions to be removed if the Block Sale Transferee does not accept the board nomination rights. or the Board of Directors or (z) any third party that is not an Affiliate of the Block Sale Transferee makes a bona fide offer or proposal, with respect to a matter described in Section 3.1(d) or 3.1(e) above (a “Third Party Proposal”), the Block Sale Transferee (A) shall have the right to make a non-public competing proposal to the Board of Directors and may publicly announce that it has made a competing proposal to the Board of Directors so long as such public announcement does not constitute an offer or a solicitation to any recipient thereof and (B) may tender, exchange or otherwise sell or transfer its Company Common Shares (or other equity securities of the Company) to such third party in accordance with the Third Party Proposal; provided, however, that in the case of clauses (y) and (z), the Block Sale Transferee shall be prohibited from participating with, joining in a group with or providing financing to any such third party). [For the avoidance of doubt, any discussions involving the directors nominated by the Block Sale Transferee pursuant to Article 5 hereof (i) at a meeting of the Board of Directors or (ii) with management of the Company, other members of the Board of Directors or any of the Company’s advisors or representatives, in the case of clauses (i) and (ii), while acting in such directors’ capacity as members of the Board of Directors, shall not be deemed to violate any of the provisions requirements of this Article 3.]6Agreement.
Appears in 2 contracts
Samples: Shareholder Agreement (Starboard Value LP), Agreement (Quantum Corp /De/)
Standstill Provisions. During (a) The standstill period (the “Standstill Period”) begins on the date of this Agreement and shall extend until the Termination Date. Investor agrees that during the Standstill Period, unless expressly authorized in writing to do so by a majority neither Investor nor any of the members of the Board of Directors, acting through a committee of directors that qualify as “independent directors” as defined by applicable stock exchange listing rules [(which term, for this purpose, will exclude any directors nominated by the Block Sale Transferee)]1, the Block Sale Transferee shall notits Affiliates under its control or direction will, and shall Investor will cause each of its Affiliates under its control not to, directly or indirectly, acting in any manner, alone or in concert with others, without prior consent, invitation, approval, or authorization of the Board or except as part of a groupotherwise provided for in this Agreement:
(ai) makeacquire, or offer, seek or agree to acquire, by purchase or otherwise, or direct any third party in the acquisition of, any way participate in securities of the Company or any solicitation of its subsidiaries (including, without limitation, Ordinary Shares and debt securities) or any proxy [securities convertible or exchangeable into or exercisable for any such securities (but without regard to the exclusion set forth in Rule 14a-1(l)(2)(iv) under the Exchange Act from the definition of collectively, “solicitation”)]2 to vote any Company Common Shares (or other equity securities of the Company”) or assets of the Company, or rights or options to acquire any securities of the Company or engage in any swap instrument or derivative hedging transactions or other derivative agreements of any nature with respect to securities of the Company, provided, Investor and its Affiliates may acquire beneficial ownership or economic exposure in the aggregate not exceeding twenty percent (20%) of the Company’s outstanding Ordinary Shares, subject to the Company’s securities trading policy and applicable law; provided further, that Investor and its Affiliates under its control, in accordance with all applicable ixxxxxx xxxxxxx and securities laws, may acquire, or offer, seek or agree to acquire, by purchase or otherwise, or direct any matter third party in the acquisition of, any debt securities of the Company in the event that the Board accepts the resignation of the Investor Affiliated Director (or any Investor Replacement Director, as applicable) pursuant to Section 1(g)(iii)(A) hereof;
(ii) engage in any short sale (i.e., the sale of borrowed securities into the public market) or acquire an instrument involving a purchase, sale or grant of any option, warrant, convertible security, stock appreciation right or other similar right (including, without limitation, any contested solicitation put or call option or swap transaction) with respect to any security (other than a broad-based market basket or index) the purpose of which is for Investor to derive any significant part of its value from a decline in the market price or value of the securities of the Company;
(iii) engage in a “solicitation” of “proxies” (as such terms are defined under the Exchange Act), votes or written consents of shareholders or security holders with respect to, or from the holders of, the securities of the Company (including a “withhold” or similar campaign), for any purpose, including, without limitation, the election or appointment of individuals to the Board or to approve or vote in favor or against shareholder proposals, resolutions or motions, or become a “participant” (as such term is defined in Instruction 3 to Item 4 of Schedule 14A promulgated under the Exchange Act) in any contested “solicitation” of proxies, votes or written consents for any purpose, including, without limitation, the election or appointment of directors with respect to the Company), Company (as such terms are defined under the Exchange Act) (other than solicitations a “solicitation” or acting as a participant “participant” in support of all the nominees of the Board at any shareholder meeting or voting its shares at any such meeting in its sole discretion, or providing such encouragement, advice or influence that is consistent with either the Board’s or Company management’s recommendation in connection with such director nominees or other proposals, resolutions or motions, pursuant to this Agreement or otherwise);
(iv) except as specifically contemplated in this Agreement, present at any annual general meeting or any general meeting of the Company’s nominees [includingshareholders or through action by written consent any proposal, without limitationresolution or motion for consideration for action by shareholders, the nominees requisition any general meeting of the Block Sale Transferee pursuant Company, require the Company to Article 5]3circulate to shareholders of the Company any statement, require the Company to give notice of any proposal, resolution or motion at any annual general meeting of the Company
(v) except as specifically contemplated by this Agreement, publicly seek any additional representation on the Board, seek the removal of any member of the Board or encourage any person to submit nominees in furtherance of a contested election;
(bvi) formgrant any proxy, join in consent or in any way participate in a group (for the avoidance of doubt, the Block Sale Transferee shall not be deemed other authority to have formed, joined in or in any way participated in a group with the Company as a result of the Block Sale Transferee’s execution of this Agreement) vote with respect to any matters (other than to the Company Common Shares (named proxies included in the Company’s proxy card for any annual general meeting or other equity general meeting of shareholders or to Investor’s Affiliates, who are subject to the restrictions set forth in this Section 2) inconsistent with the terms of this Agreement or deposit any securities of the Company) or deposit any Company Common Shares (or other equity securities of the Company) in a voting trust or similar arrangement or subject any Company Common Shares (them to a voting agreement or other arrangement of similar effect with respect to any annual or general meeting or action by written consent (excluding customary brokerage accounts, margin accounts, prime brokerage accounts, swap agreements and the like, and any arrangements solely among members of the Investor);
(vii) make any public disclosure, announcement, statement, proposal, plan or request with respect to: (A) the Company or controlling, changing or influencing the Board or management of the Company, (B) the capitalization, stock repurchase programs and practices, capital allocation or liability management programs and practices or dividend policy of the Company, (C) the Company’s management, business, corporate or governance structure or securities, assets, businesses or strategy, (D) any waiver, amendment or modification to the Company’s Memorandum of Association or Articles of Association, (E) causing a class of securities of the Company to be delisted from or cease to be authorized to be quoted on, any securities exchange, or (F) causing a class of equity securities of the Company to become eligible for termination of registration pursuant to Section 12(g)(4) of the Exchange Act;
(viii) make any public disclosure, announcement, plan or request inconsistent with this Agreement;
(ix) exercise any right conferred by English law or any federal or state law of the United States (“US law”) to: inspect or request a copy of the Company) ’s register of shareholders; inspect or request a copy of the Company’s register of interests disclosed; propose an amendment to any voting agreement ordinary resolution of the Company; bring or similar arrangementcontinue any derivative claim (either as defined in section 260 of the UK Companies Axx 0000 or otherwise under US law) concerning any director or former director of the Company or petition any UK court pursuant to Part 30 of the UK Companies Axx 0000 or any US court pursuant to US law in respect of the Company; require the Company to publish on a website any statement relating to audit concerns; require independent scrutiny of any vote conducted by way of a poll at any general meeting of the Company; apply for the appointment of an inspector to investigate the affairs or membership of the Company; or require the Company to exercise its powers under section 793 of the UK Companies Axx 0000;
(x) form, join or grant act in concert with any proxy partnership, limited partnership, syndicate or other person or group, including a “group” as defined pursuant to Section 13(d) of the Exchange Act with respect to any Company Common Shares (or other equity securities of the Company) (other than to a designated representative of the 1 Note to form: bracketed language to be removed if Block Sale Transferee does not accept the board nomination rights. 2 Note to form: bracketed language to be removed if Block Sale Transferee does not accept the board nomination rights. 3 Note to form: bracketed language to be removed if Block Sale Transferee does not accept the board nomination rights. Company pursuant to a proxy statement of the Company), other than as contemplated by the Governance Agreement or the Stockholders Agreement or the transactions contemplated thereby;
solely with Affiliates (cthat are not portfolio companies) seek to call, or to request the calling of, or call a special meeting of the stockholders of the Company, or seek to make, or make, a stockholder proposal (whether pursuant to Rule 14a-8 under the Exchange Act or otherwise) at any meeting of the stockholders of the Company, or make a request for a list of the Company’s stockholders, or[, other than pursuant to the Block Sale Transferee’s nomination rights in accordance with Article 5 of this Agreement,]4 seek election of a representative to the Board of Directors, seek to place a representative on the Board of Directors or seek the removal of any director from the Board of Directors, or otherwise acting alone, or by participating in a group, seek to control or influence the governance or policies of the Company;
(d) effect or seek to effect (including, without limitation, by entering into any discussions, negotiations, agreements or understandings whether or not legally enforceable with any third Person), offer or propose (whether publicly or otherwise) to effect, or cause or participate in, or in any way assist or facilitate any other Person to effect or seek, offer or propose (whether publicly or otherwise) to effect or participate in any acquisition of any Company Common Shares (or other equity securities of the Company) (or Beneficial Ownership thereof) in excess of the Ownership Limitation, except in accordance with Section 2.1; provided, that, for the avoidance of doubt, the Block Sale Transferee is permitted to Transfer to an unaffiliated third party any Company Common Shares (or other equity securities of the Company) Beneficially Owned by the Block Sale Transferee, subject to the provisions of Article 8 hereof, if applicable;
(e) effect or seek to effect (including, without limitation, by entering into any discussions, negotiations, agreements or understandings whether or not legally enforceable with any third Person), offer or propose (whether publicly or otherwise) to effect, or cause or participate in, or in any way assist or facilitate any other Person to effect or seek, offer or propose (whether publicly or otherwise) to effect or participate in (i) any tender offer or exchange offer, merger, acquisition, share exchange or other business combination involving the Company or any of its Subsidiaries, (ii) any recapitalization, restructuring, liquidation, dissolution or other extraordinary transaction Investor with respect to the securities of the Company now or hereafter owned by them;
(xi) make any public request or submit any proposal to amend or waive the terms of its Subsidiaries or any material portion of its or their businessesthis Agreement, or take any action which would reasonably be expected to require a public announcement of such request or proposal;
(iiixii) be a lender under, or holder of a participation interest in, or otherwise provide financing under any acquisition of any material assets credit, term loan or businesses debt facility or agreement of the Company or any of its Subsidiaries;
(f) publicly disclose, or cause or, in a material manner, facilitate the public disclosure (including without limitation through the filing by it of any document or report with the SEC or any other governmental agency or any disclosure to any 4 Note to form: bracketed language to be removed if Block Sale Transferee does not accept the board nomination rights. journalist, member of the media or securities analyst) of any intent, purpose, plan or proposal to obtain any waiver, or consent under, or any amendment of, any of the provisions of Section 2.1, this Section 3.1, or Article 4 (except as described in Section 4.1) or bring any action to (i) contest the validity of Section 2.1, this Section 3.1 or Article 4, or (ii) seek a release from the restrictions contained in Section 2.1, this Section 3.1 or Article 4;
(g) unless required by law, make or issue or cause to be made or issued any public disclosure, announcement or statement (including without limitation the filing of any document or report with the SEC or any other governmental agency or any disclosure to any journalist, member of the media or securities analyst) (i) in support of any solicitation described in paragraph (a) above (other than solicitations by the Company), (ii) in support of any matter described in paragraph (c) above, (iii) concerning any potential matter described in paragraph (d) above; (iv) concerning any potential matter described in paragraph (e) above; or (v) negatively commenting upon the Company’s corporate strategy, business, corporate activities, board of directors or management (for the avoidance of doubt, making any factual statement about the Company’s corporate strategy, business, corporate activities, board of directors or management shall not be prohibited by this Section 3.1(g)(v))subsidiaries; or
(hxiii) enter into any discussions, negotiations, agreements or understandings (whether written or oral) with any Person with respect to any of the foregoing or advise, assist or seek to persuade others third party to take any action with respect to any of the foregoing. Notwithstanding the foregoing, or advise, facilitate, knowingly assist, finance, knowingly encourage or seek to persuade any third party to take any action Investor is prohibited from taking pursuant to this Section 2.
(ab) [the The restrictions in Sections 3.1(d), 3.1(e), 3.1(f), 3.1(g)(iii), 3.1(g)(iv), 3.1(g)(v) and 3.1(h) (to the extent it relates to this Section 2 shall not prevent Investor or any of its Affiliates from making any factual statement as required by, in response to, or compliance with a subpoena, legal requirement, or applicable legal process or a request by a governmental or regulatory authority with competent jurisdiction over the foregoing) shall party from whom information is sought (so long as such process or request did not apply at any time arise as a result of discretionary acts by Investor). In addition, this Section 2 will not limit Investor’s private communications or discussions with the Investor’s advisors that (i) would not reasonably be expected to require the Company fails or Investor to comply in all material respects make public disclosure (of any kind) with respect thereto.
(c) Subject to complying with its obligations under Article 5 Sections 2(a), 11 and 12 hereof, which failure continues unremedied for a period of 10 business days following receipt by the Company of a written notice from the Block Sale Transferee of such failure or (ii) the Block Sale Transferee has relinquished its nomination rights pursuant to Article 5 and all Block Sale Transferee nominated directors have resigned; or (b)]5 in the event that (x) the Board of Directors determines that the Company should Investor may engage in any transaction described in Section 3.1(e)(i) private discussions with the Company’s senior management or 3.1(e)(ii), the Block Sale Transferee shall be permitted to participate in such Board of Directors’ approved transaction as a shareholder on the same terms and conditions as any other shareholder member of the Company, (y) the Board of Directors determines that the Company should solicit from one or more Persons or enter into discussions with one or more Persons regarding, or invites any other Person or group to make a proposal (without similarly inviting the Block Sale Transferee to make a similar proposal) with respect to an acquisition of (i) all or substantially all of the equity securities or assets of the Company or any of its Subsidiaries (by merger, tender offer or otherwise) or (ii) any material assets or businesses of the Company or any of its Subsidiaries, the Block Sale Transferee shall have the right to make a non-public competing proposal to the Board of Directors in compliance with any written procedures generally applicable to Persons making proposals provided by the Company 5 Note to form: enumerated restrictions to be removed if the Block Sale Transferee does not accept the board nomination rights. or the Board of Directors or (z) any third party that is not an Affiliate of the Block Sale Transferee makes a bona fide offer or proposal, with respect to a matter described in Section 3.1(d) or 3.1(e) above (a “Third Party Proposal”), the Block Sale Transferee (A) shall have the right to make a non-public competing proposal to the Board of Directors and may publicly announce that it has made a competing proposal to the Board of Directors so long as such private communications would not be reasonably determined to trigger public announcement does not constitute an offer disclosure obligations for any such party.
(d) Nothing in this Section 2 shall be deemed to limit the exercise in good faith by a New Director of his or her fiduciary duties solely in his or her capacity as a solicitation to any recipient thereof and (B) may tender, exchange or otherwise sell or transfer its Company Common Shares (or other equity securities director of the Company) to such third party in accordance with the Third Party Proposal; provided, however, that in the case of clauses (y) and (z), the Block Sale Transferee shall be prohibited from participating with, joining in a group with or providing financing to any such third party). [For the avoidance of doubt, any discussions involving the directors nominated by the Block Sale Transferee pursuant to Article 5 hereof (i) at a meeting of the Board of Directors or (ii) with management of the Company, other members of the Board of Directors or any of the Company’s advisors or representatives, in the case of clauses (i) and (ii), while acting in such directors’ capacity as members of the Board of Directors, shall not be deemed to violate any of the provisions of this Article 3.]6.
Appears in 2 contracts
Samples: Cooperation and Support Agreement (Valaris PLC), Cooperation and Support Agreement (Valaris PLC)
Standstill Provisions. During the one year period commencing on the date of this Agreement (the “Standstill Period”), unless expressly authorized neither Party nor any of such Party’s Representatives acting on behalf and at the direction of such Party will, in writing to do so by a majority of the members of the Board of Directors, acting through a committee of directors that qualify as “independent directors” as defined by applicable stock exchange listing rules [(which term, for this purpose, will exclude any directors nominated by the Block Sale Transferee)]1, the Block Sale Transferee shall not, and shall cause its Affiliates not tomanner, directly or indirectly, acting alone or as part of a group:
(a) make, effect, initiate, cause or in any way participate in (i) any solicitation acquisition of beneficial ownership of any proxy [(but without regard to the exclusion set forth in Rule 14a-1(l)(2)(iv) under the Exchange Act from the definition of “solicitation”)]2 to vote any Company Common Shares (or other equity securities of the Companyother Party or any securities of any subsidiary or other controlled affiliate of the other Party, (ii) any acquisition of any assets of the other Party or any assets of any subsidiary or other controlled affiliate of the other Party, (iii) any tender offer, exchange offer, merger, business combination, recapitalization, restructuring, liquidation, dissolution or extraordinary transaction involving the other Party or any subsidiary or other controlled affiliate of the other Party, or involving any securities or assets of the other Party or any securities or assets of any subsidiary or other controlled affiliate of the other Party, 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 matter (including, without limitation, any contested solicitation for the election of directors with respect to the Company), other than solicitations or acting as a participant in support of all securities of the Company’s nominees [including, without limitation, the nominees of the Block Sale Transferee pursuant to Article 5]3other Party;
(b) form, join in or in any way participate in a group “group” (for as defined in the avoidance Securities Exchange Act of doubt, 1934 and the Block Sale Transferee shall not be deemed to have formed, joined in or in any way participated in a group with the Company as a result of the Block Sale Transferee’s execution of this Agreementrules promulgated thereunder) with respect to the Company Common Shares (or other equity beneficial ownership of any securities of the Company) or deposit any Company Common Shares (or other equity securities of the Company) in a voting trust or similar arrangement or subject any Company Common Shares (or other equity securities of the Company) to any voting agreement or similar arrangement, or grant any proxy with respect to any Company Common Shares (or other equity securities of the Company) (other than to a designated representative of the 1 Note to form: bracketed language to be removed if Block Sale Transferee does not accept the board nomination rights. 2 Note to form: bracketed language to be removed if Block Sale Transferee does not accept the board nomination rights. 3 Note to form: bracketed language to be removed if Block Sale Transferee does not accept the board nomination rights. Company pursuant to a proxy statement of the Company), other than as contemplated by the Governance Agreement or the Stockholders Agreement or the transactions contemplated therebyParty;
(c) seek act, alone or in concert with others, to call, or to request the calling of, or call a special meeting of the stockholders of the Company, or seek to make, or make, a stockholder proposal (whether pursuant to Rule 14a-8 under the Exchange Act or otherwise) at any meeting of the stockholders of the Company, or make a request for a list of the Company’s stockholders, or[, other than pursuant to the Block Sale Transferee’s nomination rights in accordance with Article 5 of this Agreement,]4 seek election of a representative to the Board of Directors, seek to place a representative on the Board of Directors or seek the removal of any director from the Board of Directors, or otherwise acting alone, or by participating in a group, seek to control or influence the governance management, board of directors or policies of the Companyother Party other than in connection with the negotiation or consummation of a possible Transaction pursuant to the terms of this Agreement;
(d) effect or seek take any action that might require the other Party to effect (including, without limitation, by entering into make a public announcement regarding any discussions, negotiations, agreements or understandings whether or not legally enforceable with any third Person), offer or propose (whether publicly or otherwise) to effect, or cause or participate in, or in any way assist or facilitate any other Person to effect or seek, offer or propose (whether publicly or otherwise) to effect or participate in any acquisition of any Company Common Shares (or other equity securities of the Company) types of matters set forth in clause “(or Beneficial Ownership thereof) in excess a)” of the Ownership Limitation, except in accordance with Section 2.1; provided, that, for the avoidance of doubt, the Block Sale Transferee is permitted to Transfer to an unaffiliated third party any Company Common Shares (or other equity securities of the Company) Beneficially Owned by the Block Sale Transferee, subject to the provisions of Article 8 hereof, if applicablethis sentence;
(e) effect or seek publicly offer to effect (including, without limitation, by entering into any discussions, negotiations, agreements or understandings whether or not legally enforceable with any third Person), offer or propose (whether publicly or otherwise) to effecttake, or cause or participate inpublicly propose the taking of, or any action referred to in any way assist or facilitate any other Person to effect or seek, offer or propose (whether publicly or otherwise) to effect or participate in (i) any tender offer or exchange offer, merger, acquisition, share exchange or other business combination involving the Company or any of its Subsidiaries, (ii) any recapitalization, restructuring, liquidation, dissolution or other extraordinary transaction with respect to the Company or any of its Subsidiaries or any material portion of its or their businesses, or (iii) any acquisition of any material assets or businesses of the Company or any of its Subsidiariesthis Section 7;
(f) publicly discloseassist, induce or cause or, in a material manner, facilitate the public disclosure (including without limitation through the filing by it of any document or report with the SEC or encourage any other governmental agency or Person (other than the other Party hereto) to take any disclosure to any 4 Note to form: bracketed language to be removed if Block Sale Transferee does not accept the board nomination rights. journalist, member action of the media or securities analyst) of any intent, purpose, plan or proposal type referred to obtain any waiver, or consent under, or any amendment of, any of the provisions of Section 2.1, in this Section 3.1, or Article 4 (except as described in Section 4.1) or bring any action to (i) contest the validity of Section 2.1, this Section 3.1 or Article 4, or (ii) seek a release from the restrictions contained in Section 2.1, this Section 3.1 or Article 47;
(g) unless required by law, make or issue or cause to be made or issued any public disclosure, announcement or statement (including without limitation the filing of any document or report with the SEC or any other governmental agency or any disclosure to any journalist, member of the media or securities analyst) (i) in support of any solicitation described in paragraph (a) above (other than solicitations by the Company), (ii) in support of any matter described in paragraph (c) above, (iii) concerning any potential matter described in paragraph (d) above; (iv) concerning any potential matter described in paragraph (e) above; or (v) negatively commenting upon the Company’s corporate strategy, business, corporate activities, board of directors or management (for the avoidance of doubt, making any factual statement about the Company’s corporate strategy, business, corporate activities, board of directors or management shall not be prohibited by this Section 3.1(g)(v)); or
(h) enter into any discussions, negotiations, agreements arrangement or understandings agreement with any other Person with respect to any of (other than such Party’s own Representatives and the foregoing or advise, assist or seek to persuade others to take any action with respect other Party hereto and its Representatives) relating to any of the foregoing. Notwithstanding ; or
(h) publicly request or propose that the foregoing, (a) [the restrictions in Sections 3.1(d), 3.1(e), 3.1(f), 3.1(g)(iii), 3.1(g)(iv), 3.1(g)(v) and 3.1(h) (to the extent it relates to other Party or any of the foregoing) other Party’s Representatives amend, waive or consider the amendment or waiver of any provision set forth in this Section 7. The expiration of the Standstill Period will not terminate or otherwise affect any of the other provisions of this Agreement. Notwithstanding any other provision of this Agreement to the contrary, nothing in this Section 7 or any other provision of this Agreement shall be deemed to prohibit a Party from confidentially communicating to the other Party’s board of directors or senior management or external financial advisors any non-public proposals regarding a Transaction in such a manner as would not apply at reasonably be expected to require public disclosure thereof under applicable law or listing standards of any time that securities exchange. In addition, the restrictions set forth in this Section 7 shall automatically terminate and be of no further force and effect with respect to a Party (the “Subject Party”), without any action on the part of any Party hereto, if either (i) the Company fails Subject Party enters into a definitive written agreement with any Person other than the other Party hereto (or any of its affiliates) to comply in consummate a transaction involving the acquisition of all material respects with its obligations under Article 5 hereof, which failure continues unremedied for or a period of 10 business days following receipt by the Company of a written notice from the Block Sale Transferee of such failure or (ii) the Block Sale Transferee has relinquished its nomination rights pursuant to Article 5 and all Block Sale Transferee nominated directors have resigned; or (b)]5 in the event that (x) the Board of Directors determines that the Company should engage in any transaction described in Section 3.1(e)(i) or 3.1(e)(ii), the Block Sale Transferee shall be permitted to participate in such Board of Directors’ approved transaction as a shareholder on the same terms and conditions as any other shareholder majority of the Company, (y) voting power of the Board of Directors determines that the Company should solicit from one Subject Party’s outstanding equity securities or more Persons or enter into discussions with one or more Persons regarding, or invites any other Person or group to make a proposal (without similarly inviting the Block Sale Transferee to make a similar proposal) with respect to an acquisition of (i) all or substantially all of the equity securities or consolidated assets of the Company or any of Subject Party and its Subsidiaries consolidated subsidiaries (whether by merger, consolidation, business combination, tender offer or exchange offer, recapitalization, restructuring, sale, equity issuance or otherwise) or (ii) any material assets a tender or businesses exchange offer for all or a majority of the Company Subject Party’s outstanding equity securities is commenced by any Person other than the other Party hereto or any of its Subsidiariesaffiliates to which the Subject Party’s board of directors has recommended in favor. Upon the expiration or termination of this Section 7, the Block Sale Transferee shall have Parties expressly agree that nothing in this Agreement will be deemed to prevent, restrict or otherwise impair the right or ability of either Party to make a non-public competing proposal to the Board of Directors in compliance with any written procedures generally applicable to Persons making proposals provided by the Company 5 Note to form: enumerated restrictions to be removed if the Block Sale Transferee does not accept the board nomination rights. or the Board of Directors or (z) any third party that is not an Affiliate of the Block Sale Transferee makes a bona fide offer or proposal, with respect to a matter described in Section 3.1(d) or 3.1(e) above (a “Third Party Proposal”), the Block Sale Transferee (A) shall have the right to make a non-public competing proposal to the Board of Directors and may publicly announce that it has made a competing proposal to the Board of Directors so long as such public announcement does not constitute an offer or a solicitation to any recipient thereof and (B) may tender, exchange or otherwise sell or transfer its Company Common Shares (or other equity securities of the Company) to such third party in accordance with the Third Party Proposal; provided, however, that in the case of clauses (y) and (z), the Block Sale Transferee shall be prohibited from participating with, joining in a group with or providing financing to any such third party). [For the avoidance of doubt, any discussions involving the directors nominated by the Block Sale Transferee pursuant to Article 5 hereof (i) at a meeting of the Board of Directors or (ii) with management of the Company, other members of the Board of Directors or take any of the Company’s advisors or representatives, in actions prohibited by the case of clauses (i) and (ii), while acting in such directors’ capacity as members of the Board of Directors, shall not be deemed to violate any of the provisions terms of this Article 3.]6Section 7 prior to its expiration or termination.
Appears in 2 contracts
Samples: Confidentiality Agreement (Rally Software Development Corp), Confidentiality Agreement (Ca, Inc.)
Standstill Provisions. During (a) Starboard agrees that, from the date of this Agreement until 12:01 a.m., Eastern time, on March 15, 2017 (the “Standstill Period”), unless expressly authorized in writing to do so by a majority neither it nor any of the members of the Board of Directors, acting through a committee of directors that qualify as “independent directors” as defined by applicable stock exchange listing rules [(which term, for this purpose, will exclude any directors nominated by the Block Sale Transferee)]1, the Block Sale Transferee shall notits Affiliates or Associates under its control will, and shall it will cause each of its Affiliates and Associates under its control not to, directly or indirectly, acting alone or as part of a groupin any manner:
(ai) makeengage in any solicitation of proxies or consents or become a “participant” in a “solicitation” (as such terms are defined in Regulation 14A under the Exchange Act) of proxies or consents (including, without limitation, any solicitation of consents that seeks to call a special meeting of shareholders and any exempt solicitation under Rule 14a-2(b)(1) under the Exchange Act), in each case, with respect to securities of the Company;
(ii) form, join or in any way participate in any solicitation “group” (within the meaning of any proxy [(but without regard to the exclusion set forth in Rule 14a-1(l)(2)(ivSection 13(d)(3) under of the Exchange Act from the definition of “solicitation”)]2 to vote any Company Common Shares (or other equity securities of the CompanyAct) with respect to the Common Stock (other than a “group” that includes all or some of the entities or persons identified on Exhibit B, but does not include any matter other entities or persons not identified on Exhibit B as of the date hereof); provided, however, that nothing herein shall limit the ability of an Affiliate of Starboard to join the “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;
(includingiii) deposit any Common Stock in any voting trust or subject any Common Stock to any arrangement or agreement with respect to the voting of any Common Stock, without limitationother than any such voting trust, arrangement or agreement solely among the members of Starboard and otherwise in accordance with this Agreement;
(iv) seek, or encourage any person or entity, to submit nominations in furtherance of a “contested solicitation solicitation” for the election or removal of directors with respect to the Company)Company or seek, encourage or take any other than solicitations action with respect to the election or acting removal of any directors; provided, however, that nothing in this Agreement shall prevent Starboard or its Affiliates or Associates from taking actions in furtherance of identifying director candidates in connection with the 2017 Annual Meeting so long as such actions do not create a participant public disclosure obligation for Starboard or the Company and are not publicly disclosed by Starboard or its representatives or Affiliates and are undertaken on a basis reasonably designed to be confidential and in support accordance in all material respects with Starboard’s normal practices in the circumstances;
(A) make any proposal for consideration by shareholders at any annual or special meeting of all shareholders of the Company’s nominees [including, (B) make any offer or proposal (with or without limitationconditions) with respect to any merger, acquisition, recapitalization, restructuring, disposition or other business combination involving Starboard and the nominees of Company, (C) affirmatively solicit a third party to make an offer or proposal (with or without conditions) with respect to any merger, acquisition, recapitalization, restructuring, disposition or other business combination involving the Block Sale Transferee pursuant to Article 5]3;
Company, or publicly encourage, initiate or support any third party in making such an offer or proposal, (bD) formpublicly comment on any third party proposal regarding any merger, join in acquisition, recapitalization, restructuring, disposition, or in any way participate in a group (for the avoidance of doubt, the Block Sale Transferee shall not be deemed to have formed, joined in or in any way participated in a group with the Company as a result of the Block Sale Transferee’s execution of this Agreement) other business combination with respect to the Company Common Shares by such third party prior to such proposal becoming public or (E) call or other equity securities of the Company) or deposit any Company Common Shares (or other equity securities of the Company) in a voting trust or similar arrangement or subject any Company Common Shares (or other equity securities of the Company) to any voting agreement or similar arrangement, or grant any proxy with respect to any Company Common Shares (or other equity securities of the Company) (other than to a designated representative of the 1 Note to form: bracketed language to be removed if Block Sale Transferee does not accept the board nomination rights. 2 Note to form: bracketed language to be removed if Block Sale Transferee does not accept the board nomination rights. 3 Note to form: bracketed language to be removed if Block Sale Transferee does not accept the board nomination rights. Company pursuant to a proxy statement of the Company), other than as contemplated by the Governance Agreement or the Stockholders Agreement or the transactions contemplated thereby;
(c) seek to call, or to request the calling of, or call a special meeting of the stockholders of the Company, or seek to make, or make, a stockholder proposal (whether pursuant to Rule 14a-8 under the Exchange Act or otherwise) at any meeting of the stockholders of the Company, or make a request for a list of the Company’s stockholders, or[, other than pursuant to the Block Sale Transferee’s nomination rights in accordance with Article 5 of this Agreement,]4 seek election of a representative to the Board of Directors, seek to place a representative on the Board of Directors or seek the removal of any director from the Board of Directors, or otherwise acting alone, or by participating in a group, seek to control or influence the governance or policies of the Companyshareholders;
(dvi) effect seek, alone or in concert with others, representation on the Board, except as specifically permitted in Section 1;
(vii) seek to effect (includingadvise, without limitationencourage, by entering into support or influence any discussions, negotiations, agreements person or understandings whether entity with respect to the voting or not legally enforceable with any third Person), offer or propose (whether publicly or otherwise) to effect, or cause or participate in, or in any way assist or facilitate any other Person to effect or seek, offer or propose (whether publicly or otherwise) to effect or participate in any acquisition disposition of any Company Common Shares (or other equity securities of the Company) (Company at any annual or Beneficial Ownership thereof) in excess special meeting of the Ownership Limitationshareholders, except in accordance with Section 2.1; provided, that, for the avoidance of doubt, the Block Sale Transferee is permitted to Transfer to an unaffiliated third party any Company Common Shares (or other equity securities of the Company) Beneficially Owned by the Block Sale Transferee, subject to the provisions of Article 8 hereof, if applicable;
(e) effect or seek to effect (including, without limitation, by entering into any discussions, negotiations, agreements or understandings whether or not legally enforceable with any third Person), offer or propose (whether publicly or otherwise) to effect, or cause or participate in, or in any way assist or facilitate any other Person to effect or seek, offer or propose (whether publicly or otherwise) to effect or participate in (i) any tender offer or exchange offer, merger, acquisition, share exchange or other business combination involving the Company or any of its Subsidiaries, (ii) any recapitalization, restructuring, liquidation, dissolution or other extraordinary transaction with respect to the Company or any of its Subsidiaries or any material portion of its or their businesses, or (iii) any acquisition of any material assets or businesses of the Company or any of its Subsidiaries;
(f) publicly disclose, or cause or, in a material manner, facilitate the public disclosure (including without limitation through the filing by it of any document or report with the SEC or any other governmental agency or any disclosure to any 4 Note to form: bracketed language to be removed if Block Sale Transferee does not accept the board nomination rights. journalist, member of the media or securities analyst) of any intent, purpose, plan or proposal to obtain any waiver, or consent under, or any amendment of, any of the provisions of Section 2.1, this Section 3.1, or Article 4 (except as described in Section 4.1) or bring any action to (i) contest the validity of Section 2.1, this Section 3.1 or Article 4, or (ii) seek a release from the restrictions contained in Section 2.1, this Section 3.1 or Article 4;
(g) unless required by law, make or issue or cause to be made or issued any public disclosure, announcement or statement (including without limitation the filing of any document or report with the SEC or any other governmental agency or any disclosure to any journalist, member of the media or securities analyst) (i) in support of any solicitation described in paragraph (a) above (other than solicitations by the Company), (ii) in support of any matter described in paragraph (c) above, (iii) concerning any potential matter described in paragraph (d) above; (iv) concerning any potential matter described in paragraph (e) above; or (v) negatively commenting upon the Company’s corporate strategy, business, corporate activities, board of directors or management (for the avoidance of doubt, making any factual statement about the Company’s corporate strategy, business, corporate activities, board of directors or management shall not be prohibited by this Section 3.1(g)(v))1; or
(hviii) enter into make any discussions, negotiations, agreements request or understandings submit any proposal to amend the terms of this Agreement other than through non-public communications with the Company that would not be reasonably determined to trigger public disclosure obligations for any Person with respect to any of the foregoing or advise, assist or seek to persuade others to take any action with respect to any of the foregoing. Notwithstanding the foregoing, Party.
(ab) [the restrictions Nothing in Sections 3.1(d), 3.1(e), 3.1(f), 3.1(g)(iii), 3.1(g)(iv), 3.1(g)(v) and 3.1(h) (to the extent it relates to any of the foregoingSection 2(a) shall not apply at any time that (i) be deemed to limit the Company fails to comply exercise in all material respects with its obligations under Article 5 hereof, which failure continues unremedied for a period of 10 business days following receipt good faith by the Company New Directors of a written notice from the Block Sale Transferee of such failure or (ii) the Block Sale Transferee has relinquished its nomination rights pursuant to Article 5 and all Block Sale Transferee nominated their fiduciary duties solely in his capacity as directors have resigned; or (b)]5 in the event that (x) the Board of Directors determines that the Company should engage in any transaction described in Section 3.1(e)(i) or 3.1(e)(ii), the Block Sale Transferee shall be permitted to participate in such Board of Directors’ approved transaction as a shareholder on the same terms and conditions as any other shareholder of the Company, (y) the Board of Directors determines that the Company should solicit from one or more Persons or enter into discussions with one or more Persons regarding, or invites any other Person or group to make a proposal (without similarly inviting the Block Sale Transferee to make a similar proposal) with respect to an acquisition of (i) all or substantially all of the equity securities or assets of the Company or any of its Subsidiaries (by merger, tender offer or otherwise) or (ii) any material assets or businesses of the Company or any of its Subsidiaries, the Block Sale Transferee shall have the right to make a non-public competing proposal to the Board of Directors in compliance with any written procedures generally applicable to Persons making proposals provided by the Company 5 Note to form: enumerated restrictions to be removed if the Block Sale Transferee does not accept the board nomination rights. or the Board of Directors or (z) any third party that is not an Affiliate of the Block Sale Transferee makes a bona fide offer or proposal, with respect to a matter described in Section 3.1(d) or 3.1(e) above (a “Third Party Proposal”), the Block Sale Transferee (A) shall have the right to make a non-public competing proposal to the Board of Directors and may publicly announce that it has made a competing proposal to the Board of Directors so long as such public announcement does not constitute an offer or a solicitation to any recipient thereof and (B) may tender, exchange or otherwise sell or transfer its Company Common Shares (or other equity securities of the Company) to such third party in accordance with the Third Party Proposal; provided, however, that in the case of clauses (y) and (z), the Block Sale Transferee shall be prohibited from participating with, joining in a group manner consistent with or providing financing to any such third party). [For the avoidance of doubt, any discussions involving the directors nominated by the Block Sale Transferee pursuant to Article 5 hereof (i) at a meeting of the Board of Directors or (ii) with management of the Company, other members of the Board of Directors or any of the Companytheir and Starboard’s advisors or representatives, in the case of clauses (i) and (ii), while acting in such directors’ capacity as members of the Board of Directors, shall not be deemed to violate any of the provisions of obligations under this Article 3.]6Agreement.
Appears in 2 contracts
Samples: Shareholder Agreement (Depomed Inc), Shareholder Agreement (Starboard Value LP)
Standstill Provisions. During the Standstill Period(a) Coxxxx xnd his affiliates will not, alone or in concert with others (and will not advise, assist or encourage others to), directly or indirectly, unless expressly authorized specifically requested in writing to do so in advance by the Company or specifically approved by a majority of the members of the Board of Directors, acting through a committee Directors of directors the Company (it being understood that qualify as “independent directors” as defined by applicable stock exchange listing rules [(which term, for this purpose, will exclude Coxxxx xr affiliates of Coxxxx xhall not seek to have the Company or any directors nominated by the Block Sale Transferee)]1, the Block Sale Transferee shall not, and shall cause its Affiliates not to, directly or indirectly, acting alone or as part of a group:
(a) make, or in any way participate in any solicitation of any proxy [(but without regard to the exclusion set forth in Rule 14a-1(l)(2)(iv) under the Exchange Act from the definition of “solicitation”)]2 to vote any Company Common Shares (or other equity securities of the Company's officers, directors, representatives, trustees, employees, attorneys, advisors, agents, affiliates or associates make any such request), for a period of two (2) years from the date hereof: (i) by purchase or otherwise, acquire, or agree to acquire ownership (including, but not limited to, beneficial ownership) of any additional shares of Common Stock of the Company or direct or indirect rights (including convertible securities) or options to acquire such ownership; (ii) make any public announcement with respect to, or submit any proposal for, the acquisition of beneficial ownership of additional shares of Common Stock (or direct or indirect rights, including convertible securities, or options to acquire such beneficial ownership), or for or with respect to any matter (including, without limitation, any contested solicitation for the election of directors with respect to the Company), other than solicitations extraordinary transaction or acting as a participant in support of all of the Company’s nominees [including, without limitation, the nominees of the Block Sale Transferee pursuant to Article 5]3;
(b) form, join in or in any way participate in a group (for the avoidance of doubt, the Block Sale Transferee shall not be deemed to have formed, joined in or in any way participated in a group with the Company as a result of the Block Sale Transferee’s execution of this Agreement) with respect to the Company Common Shares (or other equity securities of the Company) or deposit any Company Common Shares (or other equity securities of the Company) in a voting trust or similar arrangement or subject any Company Common Shares (or other equity securities of the Company) to any voting agreement or similar arrangement, or grant any proxy with respect to any Company Common Shares (or other equity securities of the Company) (other than to a designated representative of the 1 Note to form: bracketed language to be removed if Block Sale Transferee does not accept the board nomination rights. 2 Note to form: bracketed language to be removed if Block Sale Transferee does not accept the board nomination rights. 3 Note to form: bracketed language to be removed if Block Sale Transferee does not accept the board nomination rights. Company pursuant to a proxy statement of the Company), other than as contemplated by the Governance Agreement or the Stockholders Agreement or the transactions contemplated thereby;
(c) seek to call, or to request the calling of, or call a special meeting of the stockholders of the Company, or seek to make, or make, a stockholder proposal (whether pursuant to Rule 14a-8 under the Exchange Act or otherwise) at any meeting of the stockholders of the Company, or make a request for a list of the Company’s stockholders, or[, other than pursuant to the Block Sale Transferee’s nomination rights in accordance with Article 5 of this Agreement,]4 seek election of a representative to the Board of Directors, seek to place a representative on the Board of Directors or seek the removal of any director from the Board of Directors, or otherwise acting alone, or by participating in a group, seek to control or influence the governance or policies of the Company;
(d) effect or seek to effect (including, without limitation, by entering into any discussions, negotiations, agreements or understandings whether or not legally enforceable with any third Person), offer or propose (whether publicly or otherwise) to effect, or cause or participate in, or in any way assist or facilitate any other Person to effect or seek, offer or propose (whether publicly or otherwise) to effect or participate in any acquisition of any Company Common Shares (or other equity securities of the Company) (or Beneficial Ownership thereof) in excess of the Ownership Limitation, except in accordance with Section 2.1; provided, that, for the avoidance of doubt, the Block Sale Transferee is permitted to Transfer to an unaffiliated third party any Company Common Shares (or other equity securities of the Company) Beneficially Owned by the Block Sale Transferee, subject to the provisions of Article 8 hereof, if applicable;
(e) effect or seek to effect (including, without limitation, by entering into any discussions, negotiations, agreements or understandings whether or not legally enforceable with any third Person), offer or propose (whether publicly or otherwise) to effect, or cause or participate in, or in any way assist or facilitate any other Person to effect or seek, offer or propose (whether publicly or otherwise) to effect or participate in (i) any tender offer or exchange offer, merger, acquisitionconsolidation, share exchange sale of substantial assets or other business combination involving the Company or any of its Subsidiariesaffiliates, whether or not any parties other than Coxxxx xnd his affiliates and associates are involved and whether or not such proposal might require the making of a public announcement by the Company unless (iix) such proposal is directed and disclosed solely to the Board of Directors of the Company and (y) the Company shall have requested Coxxxx xn writing in advance of the submission of such proposal; (iii) make, or in any recapitalizationway participate in, restructuringany "solicitation" of "proxies" (as such terms are defined or used in Regulation 14A under the Exchange Act) or become a "participant" in any "election contest" (as such terms are defined or used in Rule 14a-11 under the Exchange Act) to vote, liquidationor seek to advise or influence any person or entity with respect to the voting of, dissolution any voting securities of the Company or other extraordinary transaction any of its affiliates; (iv) form, join or in any way participate in a "group" (as such term is used in Section 13d(3) of the Exchange Act) with respect to any securities of the Company or any of its affiliates in connection with any action or matter otherwise prohibited by the terms of this Agreement; (v) initiate or propose any shareholder proposals for submission to a vote of shareholders with respect to the Company or any of its Subsidiaries affiliates or propose any material portion person for election to the Board of its or their businesses, or (iii) any acquisition of any material assets or businesses Directors of the Company or any of its Subsidiaries;
affiliates; (fvi) publicly discloseinitiate any communication with any customer or supplier of the Company regarding matters relating to the Company with a view towards interfering with or otherwise adversely affecting the relationship between the Company and any such customer or supplier; (vii) otherwise seek to control the management or policies of the Company or any of its affiliates, to obtain representation on the Board of Directors of the Company or any of its affiliates; (viii) disclose to any third party, or cause ormake any filing under the Exchange Act (including, in a material mannerwithout limitation, facilitate the public disclosure (including without limitation through the filing by it of under Section 13(d) thereof) disclosing, any document or report with the SEC or any other governmental agency or any disclosure to any 4 Note to form: bracketed language to be removed if Block Sale Transferee does not accept the board nomination rights. journalist, member of the media or securities analyst) of any intent, purposeintention, plan or proposal to obtain any waiver, or consent under, or any amendment of, any of the provisions of Section 2.1, this Section 3.1, or Article 4 (except as described in Section 4.1) or bring any action to (i) contest the validity of Section 2.1, this Section 3.1 or Article 4, or (ii) seek a release from the restrictions contained in Section 2.1, this Section 3.1 or Article 4;
(g) unless required by law, make or issue or cause to be made or issued any public disclosure, announcement or statement (including without limitation the filing of any document or report arrangement inconsistent with the SEC or any other governmental agency or any disclosure to any journalist, member of the media or securities analyst) (i) in support of any solicitation described in paragraph (a) above (other than solicitations by the Company), (ii) in support of any matter described in paragraph (c) above, (iii) concerning any potential matter described in paragraph (d) aboveforegoing; (iv) concerning any potential matter described in paragraph (e) above; or (v) negatively commenting upon the Company’s corporate strategy, business, corporate activities, board of directors or management (for the avoidance of doubt, making any factual statement about the Company’s corporate strategy, business, corporate activities, board of directors or management shall not be prohibited by this Section 3.1(g)(v)); or
(hix) enter into any discussions, negotiations, agreements arrangements or understandings with any Person with respect to any of the foregoing or advise, assist or seek to persuade others to take any action third party with respect to any of the foregoing. Notwithstanding the foregoing, (a) [the restrictions in Sections 3.1(d), 3.1(e), 3.1(f), 3.1(g)(iii), 3.1(g)(iv), 3.1(g)(v) and 3.1(h) (to the extent it relates to any of the foregoing) shall not apply at any time that (i) the Company fails to comply in all material respects with its obligations under Article 5 hereof, which failure continues unremedied for a period of 10 business days following receipt by the Company of a written notice from the Block Sale Transferee of such failure or (ii) the Block Sale Transferee has relinquished its nomination rights pursuant to Article 5 and all Block Sale Transferee nominated directors have resigned; or (b)]5 in the event that (x) the Board of Directors determines that the Company should engage in sell any transaction described in Section 3.1(e)(i) or 3.1(e)(ii), the Block Sale Transferee shall be permitted to participate in such Board of Directors’ approved transaction as a shareholder on the same terms and conditions as any other shareholder Common Stock of the Company, directly or indirectly, unless executed in brokerage transactions; or (yxi) the Board of Directors determines that request the Company should solicit from one or more Persons or enter into discussions with one or more Persons regarding, or invites any other Person or group to make a proposal (without similarly inviting the Block Sale Transferee to make a similar proposal) with respect to an acquisition of (i) all or substantially all of the equity securities or assets of the Company or any of its Subsidiaries officers, directors, representatives, trustees, employees, attorneys, advisers, agents, affiliates or associates) to waive, amend or modify in any material respect any restrictions contained in this Article I (or to waive, amend or modify this clause (xi)), it being understood that no request whatsoever shall be made which (aa) is disclosed by mergerCoxxxx xo any third party or in any filing under the Exchange Act (including, tender offer or otherwisewithout limitation, under Section 13(d) thereof) or (iibb) any material assets or businesses of the Company might be required to publicly disclose.
(b) Coxxxx xnd any affiliate thereof shall support management proposals and vote the shares of Common Stock owned by them beneficially or any of its Subsidiaries, the Block Sale Transferee shall have the right to make a non-public competing proposal to the Board record in favor of Directors in compliance with any written procedures generally applicable to Persons making proposals provided by the Company 5 Note to form: enumerated restrictions to be removed if the Block Sale Transferee does not accept the board nomination rights. or the Board of Directors or (z) any third party that is not an Affiliate of the Block Sale Transferee makes a bona fide offer or proposal, with respect to a matter described in Section 3.1(d) or 3.1(e) above (a “Third Party Proposal”), the Block Sale Transferee (A) shall have the right to make a non-public competing proposal to the Board of Directors and may publicly announce that it has made a competing proposal to the Board of Directors so long as such public announcement does not constitute an offer or a solicitation to any recipient thereof and (B) may tender, exchange or otherwise sell or transfer its Company Common Shares (or other equity securities of the Company) to such third party in accordance with the Third Party Proposal; provided, however, that in the case of clauses (y) and (z), the Block Sale Transferee shall be prohibited from participating with, joining in a group with or providing financing to any such third party). [For the avoidance of doubt, any discussions involving the directors nominated by the Block Sale Transferee pursuant to Article 5 hereof (i) at a meeting of the Board of Directors or (ii) with management of the Company, other members of the Board of Directors or any of the Company’s advisors or representatives, in the case of clauses (i) and (ii), while acting in such directors’ capacity as members of the Board of Directors, shall not be deemed to violate any of the provisions of this Article 3.]6proposals.
Appears in 2 contracts
Samples: Standstill Agreement (Pamrapo Bancorp Inc), Standstill Agreement (Conlan Roger T)
Standstill Provisions. During (a) Starboard agrees that, from the date of this Agreement until the earlier of (i) the date that is fifteen (15) business days prior to the notice deadline under the Company’s Fourth Amended and Restated Bylaws (the “Bylaws”) for stockholders to submit stockholder nominations of director candidates for election to the Board at the Company’s 2025 Annual Meeting of Stockholders (the “2025 Annual Meeting”), or (ii) the date that is one hundred (100) days prior to the first anniversary of the 2024 Annual Meeting (the “Standstill Period”), unless expressly authorized in writing to do so by a majority of the members of the Board of Directors, acting through a committee of directors that qualify as “independent directors” as defined by applicable stock exchange listing rules [(which term, for this purpose, will exclude any directors nominated by the Block Sale Transferee)]1, the Block Sale Transferee Starboard shall not, and shall cause its Affiliates each Covered Person not to, in each case, directly or indirectly, acting alone or as part of a groupin any manner:
(ai) makeengage in any solicitation of proxies or consents or become a “participant” in a “solicitation” (as such terms are defined in Regulation 14A under the Exchange Act) of proxies or consents, in each case, with respect to any securities of the Company;
(ii) form, join or in any way participate in any solicitation “group” (within the meaning of any proxy [(but without regard to the exclusion set forth in Rule 14a-1(l)(2)(ivSection 13(d)(3) under of the Exchange Act from the definition of “solicitation”)]2 to vote any Company Common Shares (or other equity securities of the CompanyAct) with respect to any matter securities of the Company (includingother than a “group” that includes all or some of the members of Starboard, without limitationbut does not include any other entities or persons that are not members of Starboard as of the date hereof); provided, however, that nothing herein shall limit the ability of an Affiliate of Starboard to join the “group” following the execution of this Agreement, so long as any such Xxxxxxxxx agrees to be bound in writing by the terms and conditions of this Agreement;
(iii) deposit any Common Shares in any voting trust or subject any Common Shares to any arrangement or agreement with respect to the voting of any Common Shares, other than any such voting trust, arrangement or agreement solely among the members of Starboard and otherwise in accordance with this Agreement;
(iv) seek or submit, or knowingly encourage any person or entity to seek or submit, nomination(s) in furtherance of a “contested solicitation solicitation” for the appointment, election or removal of directors with respect to the Company)Company or seek, knowingly encourage or take any other than solicitations action with respect to the appointment, election or acting as a participant removal of any directors, in support of all each case in opposition to the recommendation of the Board; provided, however, that nothing in this Agreement shall prevent Starboard or its Affiliates or Associates from taking actions in furtherance of identifying director candidates in connection with the 2025 Annual Meeting, so long as such actions do not create a public disclosure obligation for Starboard or the Company, are not publicly disclosed by Starboard or its representatives, Affiliates or Associates and are undertaken on a basis reasonably designed to be confidential and in accordance in all material respects with Starboard’s nominees [including, without limitation, normal practices in the nominees of the Block Sale Transferee pursuant to Article 5]3circumstances;
(bA) form, join in make any proposal for consideration by stockholders at any annual or in any way participate in a group (for the avoidance special meeting of doubt, the Block Sale Transferee shall not be deemed to have formed, joined in or in any way participated in a group with stockholders of the Company as a result or through any referendum of the Block Sale Transferee’s execution of this Agreementstockholders, (B) make any offer or proposal (with or without conditions) with respect to the Company Common Shares any merger, tender (or other equity securities of the Companyexchange) or deposit any Company Common Shares (or other equity securities of the Company) in a voting trust or similar arrangement or subject any Company Common Shares (or other equity securities of the Company) to any voting agreement or similar arrangement, or grant any proxy with respect to any Company Common Shares (or other equity securities of the Company) (other than to a designated representative of the 1 Note to form: bracketed language to be removed if Block Sale Transferee does not accept the board nomination rights. 2 Note to form: bracketed language to be removed if Block Sale Transferee does not accept the board nomination rights. 3 Note to form: bracketed language to be removed if Block Sale Transferee does not accept the board nomination rights. Company pursuant to a proxy statement of the Company), other than as contemplated by the Governance Agreement or the Stockholders Agreement or the transactions contemplated thereby;
(c) seek to call, or to request the calling of, or call a special meeting of the stockholders of the Company, or seek to make, or make, a stockholder proposal (whether pursuant to Rule 14a-8 under the Exchange Act or otherwise) at any meeting of the stockholders of the Company, or make a request for a list of the Company’s stockholders, or[, other than pursuant to the Block Sale Transferee’s nomination rights in accordance with Article 5 of this Agreement,]4 seek election of a representative to the Board of Directors, seek to place a representative on the Board of Directors or seek the removal of any director from the Board of Directors, or otherwise acting alone, or by participating in a group, seek to control or influence the governance or policies of the Company;
(d) effect or seek to effect (including, without limitation, by entering into any discussions, negotiations, agreements or understandings whether or not legally enforceable with any third Person), offer or propose (whether publicly or otherwise) to effect, or cause or participate in, or in any way assist or facilitate any other Person to effect or seek, offer or propose (whether publicly or otherwise) to effect or participate in any acquisition of any Company Common Shares (or other equity securities of the Company) (or Beneficial Ownership thereof) in excess of the Ownership Limitation, except in accordance with Section 2.1; provided, that, for the avoidance of doubt, the Block Sale Transferee is permitted to Transfer to an unaffiliated third party any Company Common Shares (or other equity securities of the Company) Beneficially Owned by the Block Sale Transferee, subject to the provisions of Article 8 hereof, if applicable;
(e) effect or seek to effect (including, without limitation, by entering into any discussions, negotiations, agreements or understandings whether or not legally enforceable with any third Person), offer or propose (whether publicly or otherwise) to effect, or cause or participate in, or in any way assist or facilitate any other Person to effect or seek, offer or propose (whether publicly or otherwise) to effect or participate in (i) any tender offer or exchange offer, mergertakeover offer, acquisition, share exchange recapitalization, restructuring, disposition or other business combination involving the Company or any of its Subsidiariessubsidiaries, (iiC) affirmatively solicit a third party to make an offer or proposal (with or without conditions) with respect to any merger, tender (or exchange) offer, takeover offer, acquisition, recapitalization, restructuring, liquidation, dissolution disposition or other extraordinary transaction business combination involving the Company or any of its subsidiaries, or publicly encourage, initiate or support any third-party in making such an offer or proposal, (D) publicly comment on any third party proposal regarding any merger, tender (or exchange) offer, takeover offer, acquisition, recapitalization, restructuring, disposition, or other business combination with respect to the Company or any of its Subsidiaries subsidiaries by such third party prior to such proposal becoming public, (E) call or any material portion seek to call a special meeting of its or their businessesstockholders, or (iiiF) act by written consent;
(vi) seek, alone or in concert with others, representation on the Board, except as specifically permitted in Section 1;
(vii) advise, knowingly encourage, support or influence any acquisition person or entity with respect to the voting or disposition of any material assets or businesses securities of the Company at any annual or any special meeting of its Subsidiaries;stockholders, except in accordance with Section 1; or
(fviii) publicly disclose, make any request or cause or, in a material manner, facilitate submit any proposal to amend the terms of this Agreement other than through non-public communications with the Company or the Board that would not be reasonably determined to trigger public disclosure obligations for any Party.
(b) Except as expressly provided in Section 1 (including without limitation through the filing by it of any document or report with the SEC or any other governmental agency or any disclosure to any 4 Note to form: bracketed language to Sections 1(c)(ii) and 1(c)(iii)) and Section 2(a), Starboard shall be removed if Block Sale Transferee does not accept the board nomination rights. journalist, member of the media or securities analyst) of any intent, purpose, plan or proposal to obtain any waiver, or consent under, or any amendment of, any of the provisions of Section 2.1, this Section 3.1, or Article 4 (except as described in Section 4.1) or bring any action entitled to (i) contest vote the validity of Section 2.1, this Section 3.1 or Article 4, or Common Shares that it beneficially owns as it determines in its sole discretion and (ii) seek a release from the restrictions contained in subject to Section 2.112, this Section 3.1 disclose, publicly or Article 4;
(g) unless required by lawotherwise, make how it intends to vote or issue or cause to be made or issued any public disclosure, announcement or statement (including without limitation the filing of any document or report with the SEC or any other governmental agency or any disclosure to any journalist, member of the media or securities analyst) (i) in support of any solicitation described in paragraph (a) above (other than solicitations by the Company), (ii) in support of any matter described in paragraph (c) above, (iii) concerning any potential matter described in paragraph (d) above; (iv) concerning any potential matter described in paragraph (e) above; or (v) negatively commenting upon the Company’s corporate strategy, business, corporate activities, board of directors or management (for the avoidance of doubt, making any factual statement about the Company’s corporate strategy, business, corporate activities, board of directors or management shall not be prohibited by this Section 3.1(g)(v)); or
(h) enter into any discussions, negotiations, agreements or understandings with any Person act with respect to any of the foregoing or advise, assist or seek to persuade others to take any action with respect to any of the foregoing. Notwithstanding the foregoing, (a) [the restrictions in Sections 3.1(d), 3.1(e), 3.1(f), 3.1(g)(iii), 3.1(g)(iv), 3.1(g)(v) and 3.1(h) (to the extent it relates to any of the foregoing) shall not apply at any time that (i) the Company fails to comply in all material respects with its obligations under Article 5 hereof, which failure continues unremedied for a period of 10 business days following receipt by the Company of a written notice from the Block Sale Transferee of such failure or (ii) the Block Sale Transferee has relinquished its nomination rights pursuant to Article 5 and all Block Sale Transferee nominated directors have resigned; or (b)]5 in the event that (x) the Board of Directors determines that the Company should engage in any transaction described in Section 3.1(e)(i) or 3.1(e)(ii), the Block Sale Transferee shall be permitted to participate in such Board of Directors’ approved transaction as a shareholder on the same terms and conditions as any other shareholder of the Company, (y) the Board of Directors determines that the Company should solicit from one or more Persons or enter into discussions with one or more Persons regarding, or invites any other Person or group to make a proposal (without similarly inviting the Block Sale Transferee to make a similar proposal) with respect to an acquisition of (i) all or substantially all of the equity securities or assets of the Company on any shareholder proposal or any of its Subsidiaries (other matter to be voted on by merger, tender offer or otherwise) or (ii) any material assets or businesses the shareholders of the Company or any of its Subsidiaries, and the Block Sale Transferee shall have the right to make a non-public competing proposal to the Board of Directors in compliance with any written procedures generally applicable to Persons making proposals provided by the Company 5 Note to form: enumerated restrictions to be removed if the Block Sale Transferee does not accept the board nomination rights. or the Board of Directors or reasons therefor.
(zc) any third party that is not an Affiliate of the Block Sale Transferee makes a bona fide offer or proposal, with respect to a matter described Nothing in Section 3.1(d) or 3.1(e) above (a “Third Party Proposal”), the Block Sale Transferee (A2(a) shall have the right to make a non-public competing proposal to the Board of Directors and may publicly announce that it has made a competing proposal to the Board of Directors so long as such public announcement does not constitute an offer or a solicitation to any recipient thereof and (B) may tender, exchange or otherwise sell or transfer its Company Common Shares (or other equity securities of the Company) to such third party in accordance with the Third Party Proposal; provided, however, that in the case of clauses (y) and (z), the Block Sale Transferee shall be prohibited from participating with, joining in a group with or providing financing to any such third party). [For the avoidance of doubt, any discussions involving the directors nominated by the Block Sale Transferee pursuant to Article 5 hereof (i) at a meeting of the Board of Directors or (ii) with management of the Company, other members of the Board of Directors or any of the Company’s advisors or representatives, in the case of clauses (i) and (ii), while acting in such directors’ capacity as members of the Board of Directors, shall not be deemed to violate limit the exercise in good faith by the New Directors (or any Replacement Directors, as applicable) of such person’s fiduciary duties solely in such person’s capacity as a director of the provisions of Company and in a manner consistent with such person’s and Starboard’s obligations under this Article 3.]6Agreement.
Appears in 2 contracts
Samples: Shareholder Agreement (Starboard Value LP), Shareholder Agreement (Bloomin' Brands, Inc.)
Standstill Provisions. During Each Carlyle Entity agrees that, during the Standstill Periodterm of this Agreement, unless expressly authorized without the Company's prior written consent, no Carlyle Entity and no investment partnership in writing which Carlyle or one of its wholly owned subsidiaries is a general partner will, in any manner, directly or indirectly:
(a) acquire, publicly announce an intention to do so by a majority of the members of the Board of Directorsacquire, acting through a committee of directors that qualify as “independent directors” as defined by applicable stock exchange listing rules [(which termpublicly offer or propose to acquire, for this purpose, will exclude any directors nominated by the Block Sale Transferee)]1, the Block Sale Transferee shall not, and shall cause its Affiliates not toor agree to acquire, directly or indirectly, acting alone by purchase or as part otherwise, beneficial ownership of a group:
(a) makeany Voting Securities, or in direct or indirect rights or options to acquire (through purchase, exchange, conversion or otherwise) any way participate in Voting Securities if as a result of such acquisition, the Carlyle Entities and their Affiliates would beneficially own or have the right to acquire Voting Securities representing more than 30% of the issued and outstanding Voting Securities; provided, however, that this Section 3(a) shall not restrict any solicitation of any proxy [(but without regard Carlyle Entity from acquiring the Voting Securities initially issuable to the exclusion set forth in Rule 14a-1(l)(2)(iv) Carlyle Entities under the Exchange Act from the definition of “solicitation”)]2 to vote any Company Common Shares (or other equity securities terms of the Company) with respect Merger Agreement or issuable pursuant to any matter (including, without limitation, any contested solicitation the conversion rights under the Certificate of Designations for the election Series D Senior Convertible Participating Preferred Stock or the Certificate of directors with respect to Designations for the Company), other than solicitations or acting as a participant in support of all of the Company’s nominees [including, without limitation, the nominees of the Block Sale Transferee pursuant to Article 5]3Series E Senior Cumulative Convertible Participating Preferred Stock;
(b) seek representation on the Board of the Company (other than pursuant to the terms of Section 2 hereof or pursuant to the Certificate of Designations for the Series E Senior Cumulative Convertible Participating Preferred Stock);
(c) make any public announcement or proposal whatsoever with respect to a merger or other business combination, sale or transfer of substantially all of the assets, recapitalization, dividend, share repurchase, liquidation or other extraordinary corporate transaction with the Company or any other transaction which would result in a change of control of the Company (other than the sale of securities or capital stock of the Company by the Carlyle Entities or their Affiliates), advise, assist, solicit or encourage any other persons to make any such statement or proposal;
(d) make, directly or indirectly, any "solicitation" of "proxies" (as such terms are defined in Rule 14a-1 under the Securities Exchange Act of 1934, so amended (the "1934 ACT")) to vote any Voting Securities, seek to advise, encourage or influence any person or entity with respect to the voting of any Voting Securities, initiate or propose any stockholder proposal or induce or attempt to induce any other person to initiate any stockholder proposal (other than any such action in furtherance of the election to the Board of the person designated by the Carlyle Entities pursuant to Section 2);
(e) deposit any Voting Securities into a voting trust, unless the trustee of such voting trust agrees to be bound by the terms of this Agreement;
(f) form, join in or in any way participate in a group "group" (for within the avoidance meaning of doubt, the Block Sale Transferee shall not be deemed to have formed, joined in or in any way participated in a group with the Company as a result Section 13(d)(3) of the Block Sale Transferee’s execution of this Agreement1934 Act) with respect to the Company Common Shares (or other equity securities of the Company) or deposit any Company Common Shares (or other equity securities of the Company) in a voting trust or similar arrangement or subject any Company Common Shares (or other equity securities of the Company) to any voting agreement or similar arrangement, or grant any proxy with respect to any Company Common Shares (or other equity securities of the Company) (other than to a designated representative of the 1 Note to form: bracketed language to be removed if Block Sale Transferee does not accept the board nomination rights. 2 Note to form: bracketed language to be removed if Block Sale Transferee does not accept the board nomination rights. 3 Note to form: bracketed language to be removed if Block Sale Transferee does not accept the board nomination rights. Company pursuant to a proxy statement of the Company)Voting Securities, other than as contemplated by the Governance Agreement or the Stockholders Agreement or the transactions contemplated thereby;
(c) seek to call, or to request the calling of, or call a special meeting groxx xxxxxsting of the stockholders of the Company, Carlyle Entities and their Affiliates or seek to make, or make, a stockholder proposal (whether pursuant to Rule 14a-8 under the Exchange Act or otherwise) at any meeting of the stockholders of the Company, or make a request for a list of the Company’s stockholders, or[, other than pursuant to the Block Sale Transferee’s nomination rights in accordance with Article 5 Voting Agreement, dated as of this Agreement,]4 seek election of a representative to the Board of DirectorsJuly 16, seek to place a representative on the Board of Directors or seek the removal of any director from the Board of Directors, or otherwise acting alone, or by participating in a group, seek to control or influence the governance or policies of the Company;
(d) effect or seek to effect (including, without limitation, by entering into any discussions, negotiations, agreements or understandings whether or not legally enforceable with any third Person), offer or propose (whether publicly or otherwise) to effect, or cause or participate in, or in any way assist or facilitate any other Person to effect or seek, offer or propose (whether publicly or otherwise) to effect or participate in any acquisition of any Company Common Shares (or other equity securities of the Company) (or Beneficial Ownership thereof) in excess of the Ownership Limitation, except in accordance with Section 2.1; provided, that, for the avoidance of doubt, the Block Sale Transferee is permitted to Transfer to an unaffiliated third party any Company Common Shares (or other equity securities of the Company) Beneficially Owned by the Block Sale Transferee, subject to the provisions of Article 8 hereof, if applicable;
(e) effect or seek to effect (including, without limitation, by entering into any discussions, negotiations, agreements or understandings whether or not legally enforceable with any third Person), offer or propose (whether publicly or otherwise) to effect, or cause or participate in, or in any way assist or facilitate any other Person to effect or seek, offer or propose (whether publicly or otherwise) to effect or participate in (i) any tender offer or exchange offer, merger, acquisition, share exchange or other business combination involving the Company or any of its Subsidiaries, (ii) any recapitalization, restructuring, liquidation, dissolution or other extraordinary transaction with respect to the Company or any of its Subsidiaries or any material portion of its or their businesses, or (iii) any acquisition of any material assets or businesses of the Company or any of its Subsidiaries;
(f) publicly disclose, or cause or, in a material manner, facilitate the public disclosure (including without limitation through the filing by it of any document or report with the SEC or any other governmental agency or any disclosure to any 4 Note to form: bracketed language to be removed if Block Sale Transferee does not accept the board nomination rights. journalist, member of the media or securities analyst) of any intent, purpose, plan or proposal to obtain any waiver, or consent under, or any amendment of, any of the provisions of Section 2.1, this Section 3.1, or Article 4 (except as described in Section 4.1) or bring any action to (i) contest the validity of Section 2.1, this Section 3.1 or Article 4, or (ii) seek a release from the restrictions contained in Section 2.1, this Section 3.1 or Article 42002;
(g) unless required by lawmake a public request to the Company (or its directors, make officers, stockholders, employees or issue or cause agents) to be made or issued take any public disclosure, announcement or statement (including without limitation the filing of any document or report with the SEC or any other governmental agency or any disclosure to any journalist, member action in respect of the media or securities analyst) (i) in support of any solicitation described in paragraph (a) above foregoing matters (other than solicitations any such action in furtherance of the election to the Board of the person designated by the Company), (ii) in support Carlyle Entities pursuant to Section 2 hereof or pursuant to the Certificate of any matter described in paragraph (c) above, (iii) concerning any potential matter described in paragraph (d) above; (iv) concerning any potential matter described in paragraph (e) above; or (v) negatively commenting upon the Company’s corporate strategy, business, corporate activities, board of directors or management (Designations for the avoidance of doubtSeries E Senior Cumulative Convertible Participating Preferred Stock);
(h) publicly disclose any intention, making any factual statement about plan or arrangement inconsistent with the Company’s corporate strategy, business, corporate activities, board of directors or management shall not be prohibited by this Section 3.1(g)(v))foregoing; or
(h) enter into any discussions, negotiations, agreements or understandings with any Person with respect to any of the foregoing or advise, assist or seek to persuade others to take any action with respect to any of the foregoing. Notwithstanding the foregoing, (a) [the restrictions in Sections 3.1(d), 3.1(e), 3.1(f), 3.1(g)(iii), 3.1(g)(iv), 3.1(g)(v) and 3.1(h) (to the extent it relates to any of the foregoing) shall not apply at any time that (i) the Company fails to comply in all material respects with its obligations under Article 5 hereof, which failure continues unremedied for a period of 10 business days following receipt by the Company of a written notice from the Block Sale Transferee of such failure request or (ii) the Block Sale Transferee has relinquished its nomination rights pursuant to Article 5 and all Block Sale Transferee nominated directors have resigned; or (b)]5 in the event propose that (x) the Board of Directors determines that the Company should engage in any transaction described in Section 3.1(e)(i) or 3.1(e)(ii), the Block Sale Transferee shall be permitted to participate in such Board of Directors’ approved transaction as a shareholder on the same terms and conditions as any other shareholder of the Company, (y) the Board of Directors determines that the Company should solicit from one or more Persons or enter into discussions with one or more Persons regarding, or invites any other Person or group to make a proposal (without similarly inviting the Block Sale Transferee to make a similar proposal) with respect to an acquisition of (i) all or substantially all of the equity securities or assets of the Company or any of its Subsidiaries (by merger, tender offer or otherwise) or (ii) any material assets or businesses Representative of the Company amend or waive any of its Subsidiaries, the Block Sale Transferee shall have the right to make a non-public competing proposal to the Board of Directors provision set forth in compliance with any written procedures generally applicable to Persons making proposals provided by the Company 5 Note to form: enumerated restrictions to be removed if the Block Sale Transferee does not accept the board nomination rights. or the Board of Directors or (z) any third party that is not an Affiliate of the Block Sale Transferee makes a bona fide offer or proposal, with respect to a matter described in this Section 3.1(d) or 3.1(e) above (a “Third Party Proposal”), the Block Sale Transferee (A) shall have the right to make a non-public competing proposal to the Board of Directors and may publicly announce that it has made a competing proposal to the Board of Directors so long as such public announcement does not constitute an offer or a solicitation to any recipient thereof and (B) may tender, exchange or otherwise sell or transfer its Company Common Shares (or other equity securities of the Company) to such third party in accordance with the Third Party Proposal; provided, however, that in the case of clauses (y) and (z), the Block Sale Transferee shall be prohibited from participating with, joining in a group with or providing financing to any such third party). [For the avoidance of doubt, any discussions involving the directors nominated by the Block Sale Transferee pursuant to Article 5 hereof (i) at a meeting of the Board of Directors or (ii) with management of the Company, other members of the Board of Directors or any of the Company’s advisors or representatives, in the case of clauses (i) and (ii), while acting in such directors’ capacity as members of the Board of Directors, shall not be deemed to violate any of the provisions of this Article 3.]63.
Appears in 2 contracts
Samples: Merger Agreement (Urs Corp /New/), Management Rights and Standstill Agreement (Urs Corp /New/)
Standstill Provisions. During the 18-month period commencing on the date of this letter agreement (the "Standstill Period"), the Recipient will not directly or indirectly through any of the Recipient's Representatives or "affiliates" (as defined in the Securities Exchange Act of 1934 and the rules promulgated thereunder), in any manner, unless expressly authorized in writing specifically invited to do so by a majority of the members of the Board of Directors, acting through a committee of directors that qualify as “independent directors” as defined by applicable stock exchange listing rules [(which term, for this purpose, will exclude any directors nominated in writing by the Block Sale Transferee)]1, the Block Sale Transferee shall not, and shall cause its Affiliates not to, directly or indirectly, acting alone or as part of a groupCompany:
(a) make, effect, initiate, cause or in any way participate in (i) any solicitation acquisition of beneficial ownership of any proxy [(but without regard to securities of the exclusion set forth in Rule 14a-1(l)(2)(iv) under the Exchange Act from the definition Company or any securities of “solicitation”)]2 to vote any Company Common Shares (subsidiary or other equity affiliate of the Company, (ii) any acquisition of any assets of the Company or any assets of any subsidiary or other affiliate of the Company, (iii) any tender offer, exchange offer, merger, business combination, recapitalization, restructuring, liquidation, dissolution or extraordinary transaction involving the Company or any subsidiary or other affiliate of the Company, or involving any securities or assets of the Company or any securities or assets of any subsidiary or other affiliate of the Company, 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 the Company) with respect to any matter (including, without limitation, any contested solicitation for the election of directors with respect to the Company), other than solicitations or acting as a participant in support of all of the Company’s nominees [including, without limitation, the nominees of the Block Sale Transferee pursuant to Article 5]3;
(b) form, join in or in any way participate in a group "group" (for as defined in the avoidance Securities Exchange Act of doubt, 1934 and the Block Sale Transferee shall not be deemed to have formed, joined in or in any way participated in a group with the Company as a result of the Block Sale Transferee’s execution of this Agreementrules promulgated thereunder) with respect to the Company Common Shares (or other equity beneficial ownership of any securities of the Company) or deposit any Company Common Shares (or other equity securities of the Company) in a voting trust or similar arrangement or subject any Company Common Shares (or other equity securities of the Company) to any voting agreement or similar arrangement, or grant any proxy with respect to any Company Common Shares (or other equity securities of the Company) (other than to a designated representative of the 1 Note to form: bracketed language to be removed if Block Sale Transferee does not accept the board nomination rights. 2 Note to form: bracketed language to be removed if Block Sale Transferee does not accept the board nomination rights. 3 Note to form: bracketed language to be removed if Block Sale Transferee does not accept the board nomination rights. Company pursuant to a proxy statement of the Company), other than as contemplated by the Governance Agreement or the Stockholders Agreement or the transactions contemplated thereby;
(c) seek act, alone or in concert with others, to call, or to request the calling of, or call a special meeting of the stockholders of the Company, or seek to make, or make, a stockholder proposal (whether pursuant to Rule 14a-8 under the Exchange Act or otherwise) at any meeting of the stockholders of the Company, or make a request for a list of the Company’s stockholders, or[, other than pursuant to the Block Sale Transferee’s nomination rights in accordance with Article 5 of this Agreement,]4 seek election of a representative to the Board of Directors, seek to place a representative on the Board of Directors or seek the removal of any director from the Board of Directors, or otherwise acting alone, or by participating in a group, seek to control or influence the governance management, board of directors or policies of the Company;
(d) effect or seek take any action that might require the Company to effect (including, without limitation, by entering into make a public announcement regarding any discussions, negotiations, agreements or understandings whether or not legally enforceable with any third Person), offer or propose (whether publicly or otherwise) to effect, or cause or participate in, or in any way assist or facilitate any other Person to effect or seek, offer or propose (whether publicly or otherwise) to effect or participate in any acquisition of any Company Common Shares (or other equity securities of the Company) types of matters set forth in clause "(or Beneficial Ownership thereof) in excess a)" of the Ownership Limitation, except in accordance with Section 2.1; provided, that, for the avoidance of doubt, the Block Sale Transferee is permitted to Transfer to an unaffiliated third party any Company Common Shares (or other equity securities of the Company) Beneficially Owned by the Block Sale Transferee, subject to the provisions of Article 8 hereof, if applicablethis sentence;
(e) effect agree or seek offer to effect (includingtake, without limitation, by entering into any discussions, negotiations, agreements or understandings whether or not legally enforceable with any third Person), offer encourage or propose (whether publicly or otherwise) to effect, or cause or participate in, or in any way assist or facilitate any other Person to effect or seek, offer or propose (whether publicly or otherwise) to effect or participate in (i) any tender offer or exchange offer, merger, acquisition, share exchange or other business combination involving the Company or any of its Subsidiaries, (ii) any recapitalization, restructuring, liquidation, dissolution or other extraordinary transaction with respect to the Company or any of its Subsidiaries or any material portion of its or their businesses, or (iii) any acquisition of any material assets or businesses of the Company or any of its Subsidiaries;
(f) publicly disclose, or cause or, in a material manner, facilitate the public disclosure (including without limitation through the filing by it of any document or report with the SEC or any other governmental agency or any disclosure to any 4 Note to form: bracketed language to be removed if Block Sale Transferee does not accept the board nomination rights. journalist, member of the media or securities analyst) of any intent, purpose, plan or proposal to obtain any waiver, or consent under, or any amendment taking of, any of the provisions of Section 2.1, this Section 3.1, or Article 4 (except as described action referred to in Section 4.1) or bring any action to (i) contest the validity of Section 2.1, this Section 3.1 or Article 4, or (ii) seek a release from the restrictions contained in Section 2.1, this Section 3.1 or Article 4;
(g) unless required by law, make or issue or cause to be made or issued any public disclosure, announcement or statement (including without limitation the filing of any document or report with the SEC or any other governmental agency or any disclosure to any journalist, member of the media or securities analyst) (i) in support of any solicitation described in paragraph clause "(a) above )", "(other than solicitations by the Companyb)", (ii) in support of any matter described in paragraph "(c) above, (iii) concerning any potential matter described in paragraph (d) above; (iv) concerning any potential matter described in paragraph (e) above; )" or (v) negatively commenting upon the Company’s corporate strategy, business, corporate activities, board of directors or management (for the avoidance of doubt, making any factual statement about the Company’s corporate strategy, business, corporate activities, board of directors or management shall not be prohibited by this Section 3.1(g)(v)); or
(h) enter into any discussions, negotiations, agreements or understandings with any Person with respect to any of the foregoing or advise, assist or seek to persuade others to take any action with respect to any of the foregoing. Notwithstanding the foregoing, (a) [the restrictions in Sections 3.1(d), 3.1(e), 3.1(f), 3.1(g)(iii), 3.1(g)(iv), 3.1(g)(v) and 3.1(h) (to the extent it relates to any of the foregoing) shall not apply at any time that (i) the Company fails to comply in all material respects with its obligations under Article 5 hereof, which failure continues unremedied for a period of 10 business days following receipt by the Company of a written notice from the Block Sale Transferee of such failure or (ii) the Block Sale Transferee has relinquished its nomination rights pursuant to Article 5 and all Block Sale Transferee nominated directors have resigned; or (b)]5 in the event that (x) the Board of Directors determines that the Company should engage in any transaction described in Section 3.1(e)(i) or 3.1(e)(ii), the Block Sale Transferee shall be permitted to participate in such Board of Directors’ approved transaction as a shareholder on the same terms and conditions as any other shareholder of the Company, (y) the Board of Directors determines that the Company should solicit from one or more Persons or enter into discussions with one or more Persons regarding, or invites any other Person or group to make a proposal (without similarly inviting the Block Sale Transferee to make a similar proposal) with respect to an acquisition of (i) all or substantially all of the equity securities or assets of the Company or any of its Subsidiaries (by merger, tender offer or otherwise) or (ii) any material assets or businesses of the Company or any of its Subsidiaries, the Block Sale Transferee shall have the right to make a non-public competing proposal to the Board of Directors in compliance with any written procedures generally applicable to Persons making proposals provided by the Company 5 Note to form: enumerated restrictions to be removed if the Block Sale Transferee does not accept the board nomination rights. or the Board of Directors or (z) any third party that is not an Affiliate of the Block Sale Transferee makes a bona fide offer or proposal, with respect to a matter described in Section 3.1(d) or 3.1(e) above (a “Third Party Proposal”), the Block Sale Transferee (A) shall have the right to make a non-public competing proposal to the Board of Directors and may publicly announce that it has made a competing proposal to the Board of Directors so long as such public announcement does not constitute an offer or a solicitation to any recipient thereof and (B) may tender, exchange or otherwise sell or transfer its Company Common Shares (or other equity securities of the Company) to such third party in accordance with the Third Party Proposal; provided, however, that in the case of clauses (y) and (z), the Block Sale Transferee shall be prohibited from participating with, joining in a group with or providing financing to any such third party). [For the avoidance of doubt, any discussions involving the directors nominated by the Block Sale Transferee pursuant to Article 5 hereof (i) at a meeting of the Board of Directors or (ii) with management of the Company, other members of the Board of Directors or any of the Company’s advisors or representatives, in the case of clauses (i) and (ii), while acting in such directors’ capacity as members of the Board of Directors, shall not be deemed to violate any of the provisions of this Article 3.]6"
Appears in 2 contracts
Samples: Confidentiality Agreement (Bei Technologies Inc), Confidentiality Agreement (Schneider Electric Sa)
Standstill Provisions. During (a) Starboard agrees that, from the date of this Agreement until the earlier of (x) the date that is fifteen (15) business days prior to the deadline for the submission of shareholder nominations for the 2021 Annual Meeting pursuant to the Company’s Amended and Restated Articles of Incorporation, as amended, provided, that if the 2021 Annual Meeting has been changed to be more than thirty (30) calendar days before the date contemplated by the Company’s 2020 proxy statement or if the date of the 2021 Annual Meeting is scheduled to be more than thirty (30) calendar days before the one-year anniversary of the date of the 2020 Annual Meeting, then the Company shall provide Starboard with prior written notice of the date of the 2021 Annual Meeting at least fifteen (15) business days before the date on which notice of the date of the 2021 Annual Meeting is given to shareholders or made public, whichever first occurs, or (y) the date that is one hundred (100) days prior to the first anniversary of the 2020 Annual Meeting (the “Standstill Period”), unless expressly authorized in writing to do so by a majority of the members of the Board of Directors, acting through a committee of directors that qualify as “independent directors” as defined by applicable stock exchange listing rules [(which term, for this purpose, will exclude any directors nominated by the Block Sale Transferee)]1, the Block Sale Transferee Starboard shall not, and shall cause each of its controlled Affiliates and Associates not to, in each case directly or indirectly, acting alone or as part of a groupin any manner:
(ai) make, or in any way participate engage in any solicitation of any proxy [proxies or become a “participant” in a “solicitation” (but without regard to the exclusion set forth as such terms are defined in Rule 14a-1(l)(2)(iv) Regulation 14A under the Exchange Act from the definition Act) of “solicitation”)]2 to vote any Company Common Shares (or other equity securities of the Company) with respect to any matter proxies (including, without limitation, any solicitation of consents that seeks to call a special meeting of shareholders), in each case, with respect to securities of the Company;
(ii) form, join, or in any way knowingly participate in any “group” (within the meaning of Section 13(d)(3) of the Exchange Act) with respect to the shares of the Common Stock (other than a “group” that includes all or some of the members of Starboard, but does not include any other entities or persons that are not members of Starboard as of the date hereof); provided, however, that nothing herein shall limit the ability of an Affiliate of Starboard to join the “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;
(iii) deposit any shares of Common Stock in any voting trust or subject any shares of Common Stock to any arrangement or agreement with respect to the voting of any shares of Common Stock, other than any such voting trust, arrangement or agreement solely among the members of Starboard and otherwise in accordance with this Agreement;
(iv) seek or submit, or knowingly encourage any person or entity to seek or submit, nomination(s) in furtherance of a “contested solicitation solicitation” for the appointment, election or removal of directors with respect to the Company)Company or seek, or knowingly encourage or take any other than solicitations action with respect to the appointment, election or acting removal of any directors, in each case in opposition to the recommendation of the Board; provided, however, that nothing in this Agreement shall prevent Starboard or its Affiliates or Associates from taking actions in furtherance of identifying director candidates in connection with the 2021 Annual Meeting so long as such actions do not create a participant public disclosure obligation for Starboard or the Company and are undertaken on a basis reasonably designed to be confidential and in support accordance in all material respects with Starboard’s normal practices in the circumstances;
(A) make any proposal for consideration by shareholders at any annual or special meeting of all shareholders of the Company’s nominees [including, (B) make any offer or proposal (with or without limitation, the nominees of the Block Sale Transferee pursuant to Article 5]3;
(b) form, join in or in any way participate in a group (for the avoidance of doubt, the Block Sale Transferee shall not be deemed to have formed, joined in or in any way participated in a group with the Company as a result of the Block Sale Transferee’s execution of this Agreementconditions) with respect to any merger, tender (or exchange) offer, acquisition, recapitalization, restructuring, disposition or other business combination involving Starboard and the Company Common Shares or any of its subsidiaries, (C) affirmatively solicit a third party to make an offer or other equity securities of the Companyproposal (with or without conditions) or deposit any Company Common Shares (or other equity securities of the Company) in a voting trust or similar arrangement or subject any Company Common Shares (or other equity securities of the Company) to any voting agreement or similar arrangement, or grant any proxy with respect to any Company Common Shares merger, tender (or other equity securities of the Companyexchange) (other than to a designated representative of the 1 Note to form: bracketed language to be removed if Block Sale Transferee does not accept the board nomination rights. 2 Note to form: bracketed language to be removed if Block Sale Transferee does not accept the board nomination rights. 3 Note to form: bracketed language to be removed if Block Sale Transferee does not accept the board nomination rights. Company pursuant to a proxy statement of the Company), other than as contemplated by the Governance Agreement or the Stockholders Agreement or the transactions contemplated thereby;
(c) seek to call, or to request the calling of, or call a special meeting of the stockholders of the Company, or seek to make, or make, a stockholder proposal (whether pursuant to Rule 14a-8 under the Exchange Act or otherwise) at any meeting of the stockholders of the Company, or make a request for a list of the Company’s stockholders, or[, other than pursuant to the Block Sale Transferee’s nomination rights in accordance with Article 5 of this Agreement,]4 seek election of a representative to the Board of Directors, seek to place a representative on the Board of Directors or seek the removal of any director from the Board of Directors, or otherwise acting alone, or by participating in a group, seek to control or influence the governance or policies of the Company;
(d) effect or seek to effect (including, without limitation, by entering into any discussions, negotiations, agreements or understandings whether or not legally enforceable with any third Person), offer or propose (whether publicly or otherwise) to effect, or cause or participate in, or in any way assist or facilitate any other Person to effect or seek, offer or propose (whether publicly or otherwise) to effect or participate in any acquisition of any Company Common Shares (or other equity securities of the Company) (or Beneficial Ownership thereof) in excess of the Ownership Limitation, except in accordance with Section 2.1; provided, that, for the avoidance of doubt, the Block Sale Transferee is permitted to Transfer to an unaffiliated third party any Company Common Shares (or other equity securities of the Company) Beneficially Owned by the Block Sale Transferee, subject to the provisions of Article 8 hereof, if applicable;
(e) effect or seek to effect (including, without limitation, by entering into any discussions, negotiations, agreements or understandings whether or not legally enforceable with any third Person), offer or propose (whether publicly or otherwise) to effect, or cause or participate in, or in any way assist or facilitate any other Person to effect or seek, offer or propose (whether publicly or otherwise) to effect or participate in (i) any tender offer or exchange offer, merger, acquisition, share exchange recapitalization, restructuring, disposition or other business combination involving the Company or any of its Subsidiariessubsidiaries, or publicly encourage, initiate or support any third party in making such an offer or proposal, (iiD) publicly comment on any third party proposal regarding any merger, tender (or exchange) offer, acquisition, recapitalization, restructuring, liquidationdisposition, dissolution or other extraordinary transaction business combination with respect to the Company or any of its Subsidiaries or any material portion of its or their businessessubsidiaries by such third party prior to such proposal becoming public, or (iiiE) call or seek to call a special meeting of shareholders;
(vi) seek, alone or in concert with others, representation on the Board, except as specifically permitted in Section 1;
(vii) advise, knowingly encourage, knowingly support or knowingly influence any acquisition person or entity with respect to the voting or disposition of any material assets or businesses securities of the Company at any annual or any special meeting of its Subsidiaries;shareholders with respect to the appointment, election or removal of director(s), except in accordance with Section 1; or
(fviii) publicly disclose, make any request or cause or, in a material manner, facilitate submit any proposal to amend the terms of this Agreement other than through non-public communications with the Company or the Board that would not be reasonably determined to trigger public disclosure obligations for any Party.
(including without limitation through the filing by it of any document or report with the SEC or any other governmental agency or any disclosure to any 4 Note to form: bracketed language to be removed if Block Sale Transferee does not accept the board nomination rights. journalist, member of the media or securities analystb) of any intent, purpose, plan or proposal to obtain any waiver, or consent under, or any amendment of, any of the provisions of Section 2.1, this Section 3.1, or Article 4 (except Except as described expressly provided in Section 4.1) 1 or bring any action Section 2(a), Starboard shall be entitled to (i) contest the validity vote any shares of Section 2.1, this Section 3.1 or Article 4, or Common Stock that it beneficially owns as Starboard determines in its sole discretion and (ii) seek a release from the restrictions contained in Section 2.1disclose, this Section 3.1 publicly or Article 4;
(g) unless required by lawotherwise, make how it intends to vote or issue or cause to be made or issued any public disclosure, announcement or statement (including without limitation the filing of any document or report with the SEC or any other governmental agency or any disclosure to any journalist, member of the media or securities analyst) (i) in support of any solicitation described in paragraph (a) above (other than solicitations by the Company), (ii) in support of any matter described in paragraph (c) above, (iii) concerning any potential matter described in paragraph (d) above; (iv) concerning any potential matter described in paragraph (e) above; or (v) negatively commenting upon the Company’s corporate strategy, business, corporate activities, board of directors or management (for the avoidance of doubt, making any factual statement about the Company’s corporate strategy, business, corporate activities, board of directors or management shall not be prohibited by this Section 3.1(g)(v)); or
(h) enter into any discussions, negotiations, agreements or understandings with any Person act with respect to any of the foregoing or advise, assist or seek to persuade others to take any action with respect to any of the foregoing. Notwithstanding the foregoing, (a) [the restrictions in Sections 3.1(d), 3.1(e), 3.1(f), 3.1(g)(iii), 3.1(g)(iv), 3.1(g)(v) and 3.1(h) (to the extent it relates to any of the foregoing) shall not apply at any time that (i) the Company fails to comply in all material respects with its obligations under Article 5 hereof, which failure continues unremedied for a period of 10 business days following receipt by the Company of a written notice from the Block Sale Transferee of such failure or (ii) the Block Sale Transferee has relinquished its nomination rights pursuant to Article 5 and all Block Sale Transferee nominated directors have resigned; or (b)]5 in the event that (x) the Board of Directors determines that the Company should engage in any transaction described in Section 3.1(e)(i) or 3.1(e)(ii), the Block Sale Transferee shall be permitted to participate in such Board of Directors’ approved transaction as a shareholder on the same terms and conditions as any other shareholder securities of the Company, (y) any shareholder proposal or other matter to be voted on by the Board of Directors determines that the Company should solicit from one or more Persons or enter into discussions with one or more Persons regarding, or invites any other Person or group to make a proposal (without similarly inviting the Block Sale Transferee to make a similar proposal) with respect to an acquisition of (i) all or substantially all of the equity securities or assets shareholders of the Company or any of its Subsidiaries and the reasons therefor.
(by merger, tender offer or otherwisec) or (ii) any material assets or businesses of the Company or any of its Subsidiaries, the Block Sale Transferee shall have the right to make a non-public competing proposal to the Board of Directors in compliance with any written procedures generally applicable to Persons making proposals provided by the Company 5 Note to form: enumerated restrictions to be removed if the Block Sale Transferee does not accept the board nomination rights. or the Board of Directors or (z) any third party that is not an Affiliate of the Block Sale Transferee makes a bona fide offer or proposal, with respect to a matter described Nothing in Section 3.1(d) or 3.1(e) above (a “Third Party Proposal”), the Block Sale Transferee (A2(a) shall have be deemed to limit the right to make a non-public competing proposal to the Board of Directors and may publicly announce that it has made a competing proposal to the Board of Directors so long as such public announcement does not constitute an offer exercise in good faith by any Starboard Independent Appointee (or a solicitation to any recipient thereof and (BStarboard Replacement Director) may tender, exchange or otherwise sell or transfer its Company Common Shares (or other equity securities of such person’s fiduciary duties solely in such person’s capacity as a director of the Company) to such third party in accordance with the Third Party Proposal; provided, however, that in the case of clauses (y) and (z), the Block Sale Transferee shall be prohibited from participating with, joining in a group with or providing financing to any such third party). [For the avoidance of doubt, any discussions involving the directors nominated by the Block Sale Transferee pursuant to Article 5 hereof (i) at a meeting of the Board of Directors or (ii) with management of the Company, other members of the Board of Directors or any of the Company’s advisors or representatives, in the case of clauses (i) and (ii), while acting in such directors’ capacity as members of the Board of Directors, shall not be deemed to violate any of the provisions of this Article 3.]6.
Appears in 2 contracts
Samples: Shareholder Agreement (Mednax, Inc.), Shareholder Agreement (Starboard Value LP)
Standstill Provisions. During (a) Starboard agrees that, from the date of this Agreement until the earlier of (i) the date that is fifteen (15) business days prior to the deadline for the submission of stockholder nominations for the 2015 Annual Meeting pursuant to the Company’s bylaws or (ii) the date that is one hundred (100) days prior to the first anniversary of the 2014 Annual Meeting (as the same may be extended pursuant to Section 1(l), the “Standstill Period”), unless expressly authorized in writing to do so by a majority neither it nor any of the members of the Board of Directors, acting through a committee of directors that qualify as “independent directors” as defined by applicable stock exchange listing rules [(which term, for this purpose, will exclude any directors nominated by the Block Sale Transferee)]1, the Block Sale Transferee shall notits Affiliates or Associates under its control or direction will, and shall it will cause its each of such Affiliates and Associates not to, directly or indirectly, acting alone or as part of a groupin any manner:
(ai) makeengage in any solicitation of proxies or consents or become a “participant” in a “solicitation” as such terms are defined in Regulation 14A under the Exchange Act of proxies or consents (including, without limitation, any solicitation of consents that improperly seeks to call a special meeting of stockholders), in each case, with respect to securities of the Company;
(ii) form, join or in any way participate in any solicitation “group” (within the meaning of any proxy [(but without regard to the exclusion set forth in Rule 14a-1(l)(2)(ivSection 13(d)(3) under of the Exchange Act from the definition of “solicitation”)]2 to vote any Company Common Shares (or other equity securities of the CompanyAct) with respect to the Common Stock (other than a “group” that includes all or some of the persons identified on Exhibit A, but does not include any matter other entities or persons not identified on Exhibit A as of the date hereof); provided, however, that nothing herein shall limit the ability of an Affiliate of Starboard to join the “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;
(includingiii) deposit any Common Stock in any voting trust or subject any Common Stock to any arrangement or agreement with respect to the voting of any Common Stock, without limitationother than any such voting trust, arrangement or agreement solely among the members of Starboard and otherwise in accordance with this Agreement;
(iv) seek, or encourage any person, to submit nominations in furtherance of a “contested solicitation solicitation” for the election or removal of directors with respect to the Company)Company or seek, encourage or take any other than solicitations or acting as a participant in support of all of the Company’s nominees [including, without limitation, the nominees of the Block Sale Transferee pursuant to Article 5]3;
(b) form, join in or in any way participate in a group (for the avoidance of doubt, the Block Sale Transferee shall not be deemed to have formed, joined in or in any way participated in a group with the Company as a result of the Block Sale Transferee’s execution of this Agreement) action with respect to the Company Common Shares (election or other equity securities removal of the Company) or deposit any Company Common Shares (or other equity securities of the Company) in a voting trust or similar arrangement or subject any Company Common Shares (or other equity securities of the Company) to any voting agreement or similar arrangement, or grant any proxy with respect to any Company Common Shares (or other equity securities of the Company) (other than to a designated representative of the 1 Note to form: bracketed language to be removed if Block Sale Transferee does not accept the board nomination rights. 2 Note to form: bracketed language to be removed if Block Sale Transferee does not accept the board nomination rights. 3 Note to form: bracketed language to be removed if Block Sale Transferee does not accept the board nomination rights. Company pursuant to a proxy statement of the Company), other than as contemplated by the Governance Agreement or the Stockholders Agreement or the transactions contemplated therebydirectors;
(cA) seek to call, make any proposal for consideration by stockholders at any annual or to request the calling of, or call a special meeting of the stockholders of the Company, (B) make any offer or seek to make, or make, a stockholder proposal (whether pursuant with or without conditions) with respect to Rule 14a-8 under the Exchange Act any merger, acquisition, recapitalization, restructuring, disposition or otherwise) at any meeting of the stockholders of other business combination involving the Company, or encourage, initiate or support any other third party in any such related activity or (C) make a request for a list of any public communication in opposition to any Company acquisition or disposition activity approved by the Company’s stockholders, or[, other than pursuant to the Block Sale Transferee’s nomination rights in accordance with Article 5 of this Agreement,]4 seek election of a representative to the Board of Directors, seek to place a representative on the Board of Directors or seek the removal of any director from the Board of Directors, or otherwise acting alone, or by participating in a group, seek to control or influence the governance or policies of the CompanyBoard;
(dvi) effect seek, alone or in concert with others, representation on the Board, except as specifically contemplated in Section 1;
(vii) seek to effect (includingadvise, without limitationencourage, by entering into support or influence any discussions, negotiations, agreements person with respect to the voting or understandings whether or not legally enforceable with any third Person), offer or propose (whether publicly or otherwise) to effect, or cause or participate in, or in any way assist or facilitate any other Person to effect or seek, offer or propose (whether publicly or otherwise) to effect or participate in any acquisition disposition of any Company Common Shares (or other equity securities of the Company) (Company at any annual or Beneficial Ownership thereof) in excess special meeting of the Ownership Limitationstockholders, except in accordance with Section 2.11; providedor
(viii) make any request or submit any proposal to amend the terms of this Agreement other than through non-public communications with the Company that would not be reasonably determined to trigger public disclosure obligations for any Party.
(b) Except as expressly provided in Section 1 or Section 2(a), thateach member of Starboard shall be entitled to:
(i) vote their shares on any other proposal duly brought before the 2014 Annual Meeting and 2015 Annual Meeting, for the avoidance or otherwise vote as each member of doubtStarboard determines in its sole discretion; or
(ii) disclose, the Block Sale Transferee is permitted publicly or otherwise, how it intends to Transfer vote or act with respect to an unaffiliated third party any Company Common Shares (or other equity securities of the Company) Beneficially Owned , any stockholder proposal or other matter to be voted on by the Block Sale Transferee, subject to the provisions of Article 8 hereof, if applicable;
(e) effect or seek to effect (including, without limitation, by entering into any discussions, negotiations, agreements or understandings whether or not legally enforceable with any third Person), offer or propose (whether publicly or otherwise) to effect, or cause or participate in, or in any way assist or facilitate any other Person to effect or seek, offer or propose (whether publicly or otherwise) to effect or participate in (i) any tender offer or exchange offer, merger, acquisition, share exchange or other business combination involving the Company or any of its Subsidiaries, (ii) any recapitalization, restructuring, liquidation, dissolution or other extraordinary transaction with respect to the Company or any of its Subsidiaries or any material portion of its or their businesses, or (iii) any acquisition of any material assets or businesses stockholders of the Company or any of its Subsidiaries;
(f) publicly discloseand the reasons therefore; provided that, or cause oras applicable, in a material manner, facilitate the public disclosure (including without limitation through the filing by it of any document or report with the SEC or any other governmental agency or any disclosure to any 4 Note to form: bracketed language to be removed if Block Sale Transferee does not accept the board nomination rights. journalist, member of the media or securities analyst) of any intent, purpose, plan or proposal to obtain any waiver, or consent under, or any amendment of, any of the provisions of Section 2.1, this Section 3.1, or Article 4 (except as described in Section 4.1) or bring any action to (i) contest the validity of Section 2.1, this Section 3.1 or Article 4, or (ii) seek a release from the restrictions contained in Section 2.1, this Section 3.1 or Article 4;
(g) unless required by law, make or issue or cause to be made or issued any public disclosure, announcement or statement (including without limitation the filing of any document or report with the SEC or any other governmental agency or any disclosure to any journalist, member of the media or securities analyst) (i) in support of any solicitation described in paragraph (a) above (other than solicitations by the Company), (ii) in support of any matter described in paragraph (c) above, (iii) concerning any potential matter described in paragraph (d) above; (iv) concerning any potential matter described in paragraph (e) above; or (v) negatively commenting upon the Company’s corporate strategy, business, corporate activities, board of directors or management (for the avoidance of doubt, making any factual statement about the Company’s corporate strategy, business, corporate activities, board of directors or management shall not be prohibited by this Section 3.1(g)(v)); or
(h) enter into any discussions, negotiations, agreements or understandings with any Person with respect to any of the foregoing or advise, assist or seek to persuade others to take any action with respect to any of the foregoing. Notwithstanding the foregoing, (a) [the restrictions in Sections 3.1(d), 3.1(e), 3.1(f), 3.1(g)(iii), 3.1(g)(iv), 3.1(g)(v) and 3.1(h) (to the extent it relates to any of the foregoing) shall not apply at any time that (i) the Company fails to comply in all material respects with its obligations under Article 5 hereof, which failure continues unremedied for a period of 10 business days following receipt by the Company of a written notice from the Block Sale Transferee of such failure or (ii) the Block Sale Transferee has relinquished its nomination rights pursuant to Article 5 and all Block Sale Transferee nominated directors have resigned; or (b)]5 in the event that (x) the Board of Directors determines that the Company should engage in any transaction described in Section 3.1(e)(i) or 3.1(e)(ii), the Block Sale Transferee shall be permitted to participate in such Board of Directors’ approved transaction as a shareholder on the same terms and conditions as any other shareholder of the Company, (y) the Board of Directors determines that the Company should solicit from one or more Persons or enter into discussions with one or more Persons regarding, or invites any other Person or group to make a proposal (without similarly inviting the Block Sale Transferee to make a similar proposal) with respect to an acquisition of (i) all or substantially all of the equity securities or assets of the Company or any of its Subsidiaries (by merger, tender offer or otherwise) or (ii) any material assets or businesses of the Company or any of its Subsidiaries, the Block Sale Transferee shall have the right to make a non-public competing proposal to the Board of Directors activity is in compliance with any written procedures generally applicable to Persons making proposals provided by the Company 5 Note to form: enumerated restrictions to be removed if the Block Sale Transferee does not accept the board nomination rights. or the Board of Directors or (z) any third party that is not an Affiliate of the Block Sale Transferee makes a bona fide offer or proposal, with respect to a matter described in Section 3.1(d) or 3.1(e) above (a “Third Party Proposal”), the Block Sale Transferee (A) shall have the right to make a non-public competing proposal to the Board of Directors and may publicly announce that it has made a competing proposal to the Board of Directors so long as such public announcement does not constitute an offer or a solicitation to any recipient thereof and (B) may tender, exchange or otherwise sell or transfer its Company Common Shares (or other equity securities of the Company) to such third party in accordance with the Third Party Proposal; provided, however, that in the case of clauses (y) and (z), the Block Sale Transferee shall be prohibited from participating with, joining in a group with or providing financing to any such third party). [For the avoidance of doubt, any discussions involving the directors nominated by the Block Sale Transferee pursuant to Article 5 hereof (i) at a meeting of the Board of Directors or (ii) with management of the Company, other members of the Board of Directors or any of the Company’s advisors or representatives, in the case of clauses (i) and (ii), while acting in such directors’ capacity as members of the Board of Directors, shall not be deemed to violate any of the provisions requirements of this Article 3.]6Agreement.
Appears in 2 contracts
Samples: Shareholder Agreement (Quantum Corp /De/), Agreement (Starboard Value LP)
Standstill Provisions. During (a) The Ronin Group agrees that, from the period commencing on the date of this Agreement and ending on the date that is thirty (30) calendar days after the date of the 2018 Annual Meeting (the “Standstill Period”), unless expressly authorized in writing to do so by a majority neither it nor any of the members of the Board of Directors, acting through a committee of directors that qualify as “independent directors” as defined by applicable stock exchange listing rules [(which term, for this purpose, will exclude any directors nominated by the Block Sale Transferee)]1, the Block Sale Transferee shall notits Affiliates or Associates will, and shall it will cause each of its Affiliates and Associates not to, directly or indirectly, acting alone or as part of a group:
(a) make, or in any way participate in any solicitation of any proxy [(but without regard to the exclusion set forth in Rule 14a-1(l)(2)(iv) under the Exchange Act from the definition of “solicitation”)]2 to vote any Company Common Shares (or other equity securities of the Company) with respect to any matter (including, without limitation, any contested solicitation for the election of directors with respect to the Company), other than solicitations or acting as a participant in support of all of the Company’s nominees [including, without limitation, the nominees of the Block Sale Transferee pursuant to Article 5]3;
(b) form, join in or in any way participate in a group (for the avoidance of doubt, the Block Sale Transferee shall not be deemed to have formed, joined in or in any way participated in a group with the Company as a result of the Block Sale Transferee’s execution of this Agreement) with respect to the Company Common Shares (or other equity securities of the Company) or deposit any Company Common Shares (or other equity securities of the Company) in a voting trust or similar arrangement or subject any Company Common Shares (or other equity securities of the Company) to any voting agreement or similar arrangement, or grant any proxy with respect to any Company Common Shares (or other equity securities of the Company) (other than to a designated representative of the 1 Note to form: bracketed language to be removed if Block Sale Transferee does not accept the board nomination rights. 2 Note to form: bracketed language to be removed if Block Sale Transferee does not accept the board nomination rights. 3 Note to form: bracketed language to be removed if Block Sale Transferee does not accept the board nomination rights. Company pursuant to a proxy statement of the Company), other than as contemplated by the Governance Agreement or the Stockholders Agreement or the transactions contemplated thereby;
(c) seek to call, or to request the calling of, or call a special meeting of the stockholders of the Company, or seek to make, or make, a stockholder proposal (whether pursuant to Rule 14a-8 under the Exchange Act or otherwise) at any meeting of the stockholders of the Company, or make a request for a list of the Company’s stockholders, or[, other than pursuant to the Block Sale Transferee’s nomination rights in accordance with Article 5 of this Agreement,]4 seek election of a representative to the Board of Directors, seek to place a representative on the Board of Directors or seek the removal of any director from the Board of Directors, or otherwise acting alone, or by participating in a group, seek to control or influence the governance or policies of the Company;
(d) effect or seek to effect manner (including, without limitation, by entering into directing, requesting or suggesting that any discussions, negotiations, agreements other person do so):
(i) effect or understandings whether or not legally enforceable with any third Person)seek, offer or propose (whether publicly or otherwiseotherwise and whether or not subject to conditions) to effect, or announce any intention to effect or cause or participate in, in or in any way assist knowingly assist, facilitate or facilitate encourage any other Person person to effect or seek, offer or propose (whether publicly or otherwise) to effect or participate in any acquisition of any Company Common Shares (or other equity securities of the Company) (or Beneficial Ownership thereof) in excess of the Ownership Limitation, except in accordance with Section 2.1; provided, that, for the avoidance of doubt, the Block Sale Transferee is permitted to Transfer to an unaffiliated third party any Company Common Shares (or other equity securities of the Company) Beneficially Owned by the Block Sale Transferee, subject to the provisions of Article 8 hereof, if applicable;
(e) effect or seek to effect (including, without limitation, by entering into any discussions, negotiations, agreements or understandings otherwise and whether or not legally enforceable with subject to conditions) or announce any third Person), offer or propose (whether publicly or otherwise) intention to effect, effect or cause or participate in, or in any way assist or facilitate any other Person to effect or seek, offer or propose :
(whether publicly or otherwise) to effect or participate in (i1) any (A) tender offer or exchange offer, merger, acquisition, share exchange or other business combination involving offer for securities of the Company or any of its Subsidiariessubsidiaries, or any merger, consolidation, business combination or acquisition or disposition of assets of the Company or any of its subsidiaries, or (iiB) any recapitalization, restructuring, liquidation, dissolution or other similar extraordinary transaction with respect to the Company or any of its Subsidiaries subsidiaries; provided, however, that this clause shall not preclude the tender by the Ronin Group of any securities of the Company into any tender or any material portion of its or their businessesexchange offer, or vote with respect to any extraordinary transaction approved by the Board or in accordance with Section 1(c); or
(iii2) any acquisition “solicitation” of “proxies” to vote (as such terms are used in Regulation 14A of the Exchange Act) or consents to vote (whether or not related to the election or removal of directors) with respect to any material assets or businesses voting securities of the Company or any of its Subsidiariessubsidiaries, or the initiation, proposal, inducement, encouragement or solicitation of stockholders of the Company for the approval of any stockholder proposals with respect to the Company, or the solicitation, advisement or influence of any person with respect to the voting of any voting securities of the Company;
(fii) publicly disclose, deposit any shares of Common Stock or cause or, other voting securities of the Company in a material mannervoting trust or subject shares of Common Stock 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, facilitate including, without limitation, lend any securities of the public disclosure (including without limitation through the filing by it of any document or report with the SEC or any other governmental agency or any disclosure Company to any 4 Note person or entity for the purpose of allowing such person or entity to form: bracketed language to be removed if Block Sale Transferee does not accept the board nomination rights. journalist, member vote such securities in connection with any stockholder vote or consent of the media or securities analyst) of any intent, purpose, plan or proposal to obtain any waiver, or consent under, or any amendment of, any of the provisions of Section 2.1, this Section 3.1, or Article 4 (except as described in Section 4.1) or bring any action to (i) contest the validity of Section 2.1, this Section 3.1 or Article 4, or (ii) seek a release from the restrictions contained in Section 2.1, this Section 3.1 or Article 4Company;
(giii) unless required by lawencourage, make influence, advise, form, join or issue or cause to be made or issued in any public disclosure, announcement or statement (including without limitation the filing of any document or report with the SEC or any other governmental agency or any disclosure to any journalist, member way participate in a “group” as defined in Section 13(d)(3) of the media or securities analyst) (i) in support of any solicitation described in paragraph (a) above (other than solicitations by the Company), (ii) in support of any matter described in paragraph (c) above, (iii) concerning any potential matter described in paragraph (d) above; (iv) concerning any potential matter described in paragraph (e) above; or (v) negatively commenting upon the Company’s corporate strategy, business, corporate activities, board of directors or management (for the avoidance of doubt, making any factual statement about the Company’s corporate strategy, business, corporate activities, board of directors or management shall not be prohibited by this Section 3.1(g)(v)); or
(h) enter into any discussions, negotiations, agreements or understandings with any Person Exchange Act with respect to any securities of the Company or otherwise in connection with any of the foregoing (other than a “group” that includes all or advisesome of the persons identified on Exhibit A, assist but does not include any other entities or persons not identified on Exhibit A as of the date hereof); provided, however, that nothing herein shall limit the ability of an Affiliate or Associate of the Ronin Group to join the “group” following the execution of this Agreement, so long as any such Affiliate or Associate agrees to be bound by the terms and conditions of this Agreement;
(iv) (A) call or seek to persuade others call any meeting of stockholders, including by written consent, or provide to any third party a proxy, consent or requisition to call any meeting of stockholders; (B) seek to have the stockholders authorize or take corporate action by written consent without a meeting, solicit any consents from stockholders or grant any consent or proxy for a consent to any third party seeking to have the stockholders authorize or take corporate action by written consent without a meeting; (C) seek, alone or in concert with others, representation on the Board; (D) seek the removal of any member of the Board; (E) conduct a referendum of stockholders; (F) present at any annual meeting or any special meeting of the Company’s stockholders; or (G) make a request or demand for a stockholder list or an inspection of Company books and records, including pursuant to any statutory right that the Ronin Group may have (in each case, except as expressly permitted by Section 1 of this Agreement);
(v) seek, or encourage any person or entity, to submit nominations in furtherance of a “contested solicitation” for the election or removal of directors with respect to the Company or seek, encourage or take any other action with respect to the election or removal of any directors (except as expressly permitted by Section 1 of this Agreement);
(vi) otherwise act, alone or in concert with others, to seek to control, change or influence the foregoing. Notwithstanding the foregoingmanagement, (a) [the restrictions in Sections 3.1(d), 3.1(e), 3.1(f), 3.1(g)(iii), 3.1(g)(iv), 3.1(g)(v) and 3.1(h) (to the extent it relates to any of the foregoing) shall not apply at any time that (i) the Company fails to comply in all material respects with its obligations under Article 5 hereof, which failure continues unremedied for a period of 10 business days following receipt by the Company of a written notice from the Block Sale Transferee of such failure or (ii) the Block Sale Transferee has relinquished its nomination rights pursuant to Article 5 and all Block Sale Transferee nominated directors have resigned; or (b)]5 in the event that (x) the Board of Directors determines that the Company should engage in any transaction described in Section 3.1(e)(i) or 3.1(e)(ii), the Block Sale Transferee shall be permitted to participate in such Board of Directors’ approved transaction as a shareholder on the same terms and conditions as any other shareholder of the Company, (y) the Board of Directors determines that the Company should solicit from one or more Persons or enter into discussions with one or more Persons regarding, or invites any other Person or group to make a proposal (without similarly inviting the Block Sale Transferee to make a similar proposal) with respect to an acquisition of (i) all or substantially all of the equity securities or assets policies of the Company or any of its Subsidiaries subsidiaries (except as expressly permitted by merger, tender offer or otherwiseSection 1 of this Agreement);
(vii) or (ii) any material assets or businesses of seek to have the Company or any of its SubsidiariesAffiliates or Associates waive or make amendments or modifications to its respective charter, bylaws or other applicable governing documents, or other actions that may impede or facilitate the acquisition of control of the Company, or such Company Affiliate or Associate, by any person;
(viii) enter into, or seek to enter into, any agreement, arrangement or understandings (whether economic, compensatory, pecuniary or otherwise) with any member of the Board, including any Ronin Appointee;
(ix) institute, solicit, assist or join, as a party, any litigation, arbitration or other proceeding against or involving the Company or any of its current or former directors or officers (including derivative actions), other than (A) to enforce the provisions of this Agreement, (B) counterclaims with respect to any proceeding initiated by, or on behalf of, the Block Sale Transferee Company or its Affiliates against the Ronin Group, or (C) the exercise of statutory appraisal rights; provided, that the foregoing shall have not prevent any member of the right Ronin Group from responding to make or complying with a nonvalidly issued legal process;
(x) disclose any intention, plan or arrangement inconsistent with the foregoing;
(xi) instigate, encourage, join, act in concert with or assist (including, but not limited to, providing or assisting in any way in the obtaining of financing for, or acting as a joint or co-public competing proposal to the Board of Directors in compliance with any written procedures generally applicable to Persons making proposals provided by bidder for the Company 5 Note to form: enumerated restrictions to be removed if the Block Sale Transferee does not accept the board nomination rights. or the Board any of Directors or (zits subsidiaries with) any third party that is not an Affiliate to do any of the Block Sale Transferee makes a bona fide offer or proposal, with respect foregoing;
(xii) take any action that could reasonably be expected to a matter described in Section 3.1(d) or 3.1(e) above (a “Third Party Proposal”), require the Block Sale Transferee (A) shall have the right Company to make a public announcement regarding the possibility of any of the events described in this Section 2; or
(xiii) request that the Company or the Board or any of their respective representatives amend or waive any provision of this Section 2 (including this sentence) other than through non-public competing proposal communications with the Company that would not be reasonably determined to trigger public disclosure obligations for any Party, which the Board of Directors and may publicly announce that it has made a competing proposal to (excluding the Board of Directors so long as such public announcement does not constitute an offer or a solicitation to any recipient thereof and (BRonin Appointees) may tender, exchange accept or otherwise sell or transfer reject in its Company Common Shares sole discretion.
(or other equity securities b) In furtherance of the Company) to such third party in accordance with the Third Party Proposal; providedforegoing, however, that in the case of clauses (y) and (z), the Block Sale Transferee shall be prohibited from participating with, joining in a group with or providing financing to any such third party). [For the avoidance of doubt, any discussions involving the directors nominated by the Block Sale Transferee pursuant to Article 5 hereof (i) at a meeting of the Board of Directors or (ii) with management upon request of the Company, other members the Ronin Group shall promptly notify the Company of the number of shares of Common Stock Beneficially Owned by the Ronin Group. Notwithstanding anything to the contrary contained herein, the Ronin Group hereby acknowledges and agrees that the Board of Directors and the Company shall have no obligation to nominate any Ronin Appointee (or any of replacement director, if applicable) for election at the Company’s advisors or representatives, in the case of clauses (i) and (ii), while acting in such directors’ capacity as members of the Board of Directors, shall not be deemed to violate any of the provisions of this Article 3.]62019 Annual Meeting.
Appears in 2 contracts
Samples: Settlement Agreement (Peregrine Pharmaceuticals Inc), Settlement Agreement (Stafford John S Iii)
Standstill Provisions. During the period commencing with the execution and delivery of this Agreement and ending on the earlier of (x) January 25, 2018, and (y) the date that is 30 days prior to the last date for which notice of a stockholder’s intention to nominate any individual as a director of the Company at the Company’s 2018 annual meeting of stockholders must be received by the Company (the “Standstill Period”), unless expressly authorized in writing to do so by a majority of the members of the Board of Directors, acting through a committee of directors that qualify as “independent directors” as defined by applicable stock exchange listing rules [(which term, for this purpose, will exclude any directors nominated by the Block Sale Transferee)]1, the Block Sale Transferee SRS shall not, and shall cause its Affiliates not to, directly or indirectly, acting alone or as part in any manner, take any of a group:the following actions (unless specifically permitted to do so in writing in advance by the Board):
(a) makeacquire, offer to acquire, or cause to be acquired any ownership or other interest in any way participate in Voting Securities or any solicitation Synthetic Position such that SRS would collectively have Beneficial Ownership of any proxy [(but without regard to the exclusion set forth in Rule 14a-1(l)(2)(iv) under the Exchange Act from the definition of “solicitation”)]2 to vote any Company Common Shares (or other equity securities of the Company) with respect to any matter (includingmore than 12,000,000 outstanding Voting Securities; provided, without limitation, any contested solicitation for the election of directors with respect to the Company), other than solicitations or acting as a participant in support of all of the Company’s nominees [including, without limitation, the nominees of the Block Sale Transferee pursuant to Article 5]3;
(b) form, join in or in any way participate in a group (that for the avoidance of doubt, the Block Sale Transferee nothing contained in this Agreement shall not be deemed to have formed, joined in or in any way participated limit the ability of SRS to acquire, offer to acquire or cause to be acquired any ownership or other interest in any Synthetic Position that (i) is not required or permitted to be settled, in whole or in part, in Voting Securities and (ii) does not grant SRS a group with right, option or obligation to own, acquire or control or direct the Company as a result voting of the Block Sale Transferee’s execution any Voting Securities upon Exercise;
(b) solicit proxies or written consents of this Agreementstockholders or conduct any other type of referendum (binding or non-binding) 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 Company Common Shares Securities Exchange Act of 1934, as amended (the “Exchange Act”)), in or assist, advise, knowingly encourage or knowingly influence any Third Party in any “solicitation” of any proxy, consent or other equity securities of authority (as such terms are defined under the Company) or deposit any Company Common Shares (or other equity securities of the Company) in a voting trust or similar arrangement or subject any Company Common Shares (or other equity securities of the CompanyExchange Act) to vote any voting agreement or similar arrangement, or grant any proxy with respect to any Company Common Shares (or other equity securities of the Company) Voting Securities (other than to a designated representative of such advice, encouragement or influence that is consistent with the 1 Note to form: bracketed language to be removed if Block Sale Transferee does not accept the board nomination rights. 2 Note to form: bracketed language to be removed if Block Sale Transferee does not accept the board nomination rights. 3 Note to form: bracketed language to be removed if Block Sale Transferee does not accept the board nomination rights. Company pursuant to a proxy statement of the CompanyBoard’s recommendation in connection with such matter), other than as contemplated by the Governance Agreement or the Stockholders Agreement or the transactions contemplated thereby;
(c) seek other than through open market or block trade brokered sale transactions where (x) the identity of the purchaser is unknown to callSRS, or to request the calling of, (y) SRS does not directly or call a special meeting of the stockholders of the Company, or seek to make, or make, a stockholder proposal (whether pursuant to Rule 14a-8 under the Exchange Act or otherwise) at any meeting of the stockholders of the Company, or make a request for a list of the Company’s stockholders, or[, other than pursuant to the Block Sale Transferee’s nomination rights in accordance with Article 5 of this Agreement,]4 seek election of a representative to the Board of Directors, seek to place a representative on the Board of Directors or seek the removal of any director from the Board of Directors, or otherwise acting alone, or by participating in a group, seek to control indirectly select or influence the governance or policies selection of the Companypurchaser, sell, offer or agree to sell any Voting Securities of the Company to any Third Party that, to the knowledge of SRS after due inquiry, (i) has aggregate Beneficial Ownership (together with its Affiliates and Associates) of more than 4.9% of the issued and outstanding Common Stock or (ii) would result in such Third Party having aggregate Beneficial Ownership (together with its Affiliates and Associates) of more than 4.9% of the issued and outstanding Common Stock;
(d) effect or seek to effect (including, without limitation, by entering into any discussions, negotiations, agreements or understandings whether or not legally enforceable with any third Person)effect, offer or propose (whether publicly or otherwise) to effect, or cause or participate in, or in any way assist assist, facilitate or facilitate encourage any other Person to effect or seek, offer or propose (whether publicly or otherwise) to effect or participate in any acquisition of any Company Common Shares (or other equity securities of the Company) (or Beneficial Ownership thereof) in excess of the Ownership Limitation, except in accordance with Section 2.1; provided, that, for the avoidance of doubt, the Block Sale Transferee is permitted to Transfer to an unaffiliated third party any Company Common Shares (or other equity securities of the Company) Beneficially Owned by the Block Sale Transferee, subject to the provisions of Article 8 hereof, if applicable;
(e) effect or seek to effect (including, without limitation, by entering into any discussions, negotiations, agreements or understandings whether or not legally enforceable with any third Person), offer or propose (whether publicly or otherwise) to effect, or cause or participate in, or in any way assist or facilitate any other Person to effect or seek, offer or propose (whether publicly or otherwise) to effect or participate in (i) any tender offer or exchange offer, merger, consolidation, acquisition, share exchange or other scheme, arrangement, business combination involving the Company or any of its Subsidiariescombination, (ii) any recapitalization, restructuringreorganization, sale or acquisition of assets, liquidation, dissolution or other extraordinary transaction with respect to involving the Company or any of its Subsidiaries subsidiaries or any material portion of their respective securities (each, an “Extraordinary Transaction”) other than an Extraordinary Transaction approved by the Board; provided that nothing in this paragraph (d) shall preclude or prohibit SRS (or its Affiliates) from (i) tendering into a tender or exchange offer or (ii) making a proposal providing for a Change of Control Transaction (as defined below) directly to the Board or a committee thereof and making filings in connection with such proposal and related discussions or negotiations under Section 13(d) of the Exchange Act and related regulations; provided, that SRS has provided notice of its intention to make such filing (together with a reasonable description of the material items to be disclosed in such filing and, if available, a draft thereof) to the Company as soon in advance as reasonably practicable;
(e) (i) call or their businesses, or (iii) any acquisition of any material assets or businesses of seek the Company or any other Person to call any meeting of its Subsidiariesstockholders, including by written consent, (ii) seek representation on, or nominate any candidate to, the Board (except as expressly provided by this Agreement), (iii) nominate any candidate to the board of directors of any Competitor unless such candidate is independent from SRS and SRS takes all appropriate acts to prevent such third party from providing any competitively sensitive information to SRS, (iv) seek the removal of any member of the Board or (v) make any proposal at any annual or special meeting of the Company’s stockholders;
(f) publicly disclosetake any public action in support of or make any public proposal or request that constitutes or relates to: (i) advising, controlling, changing or influencing the Board or management of the Company, including any plans or proposals to change the number or term of directors or to fill any vacancies on the Board, (ii) any material change in the capitalization, stock repurchase programs and practices, capital allocation programs and practices or dividend policy of the Company, (iii) any other material change in the Company’s management, business or corporate structure, (iv) seeking to have the Company waive or make amendments or modifications to the Company’s certificate of incorporation or bylaws, or cause or, in a material manner, other actions that may impede or facilitate the public disclosure acquisition of control of the Company by any Person, (including without limitation through v) causing a class of securities of the filing by it of any document or report with the SEC or any other governmental agency or any disclosure to any 4 Note to form: bracketed language Company to be removed if Block Sale Transferee does not accept the board nomination rights. journalistdelisted from, member or to cease to be authorized to be quoted on, any securities exchange or (vi) causing a class of securities of the media or securities analystCompany to become eligible for termination of registration pursuant to Section 12(g)(4) of the Exchange Act;
(g) make any public disclosure, announcement or statement regarding any intent, purpose, plan or proposal with respect to obtain any waiverthe Board, the Company, its management, policies or consent under, or any amendment ofaffairs, any of its securities or assets or this Agreement that is inconsistent with the provisions of Section 2.1, this Section 3.1, or Article 4 (except as described in Section 4.1) or bring any action to (i) contest the validity of Section 2.1, this Section 3.1 or Article 4, or (ii) seek a release from the restrictions contained in Section 2.1, this Section 3.1 or Article 4Agreement;
(gh) unless required by lawexcept as is reasonably acceptable to the Company, make form or issue join in a partnership, limited partnership, syndicate or cause to be made or issued any public disclosureother group, announcement or statement (including without limitation the filing of any document or report with the SEC or any other governmental agency or any disclosure to any journalist, member a “group” as defined under Section 13(d) of the media or securities analyst) Exchange Act (i) in support of any solicitation described in paragraph (a) above (other than solicitations by the Companya “Group”), (ii) in support of any matter described in paragraph (c) above, (iii) concerning any potential matter described in paragraph (d) above; (iv) concerning any potential matter described in paragraph (e) above; or (v) negatively commenting upon with respect to the Company’s corporate strategy, business, corporate activities, board of directors or management Voting Securities (for the avoidance of doubt, making excluding any factual statement about group composed solely of SRS and its Affiliates);
(i) make any request for stockholder list materials or other books and records of the Company under Section 220 of the Delaware General Corporation Law or otherwise;
(j) institute, solicit or join, as a party, any litigation, arbitration or other proceeding (including any derivative action) against the Company or any of its future, current or former directors or officers or employees (provided, that nothing shall prevent SRS from bringing litigation to enforce the provisions of this Agreement or being a party to a class action instituted by a Third Party without the assistance or encouragement of SRS);
(k) except as is reasonably acceptable to the Company’s corporate strategy, business, corporate activities, board of directors or management shall not be prohibited by this Section 3.1(g)(v)); or
(h) enter into any discussions, negotiations, agreements agreements, or understandings with any Person with respect to any of the foregoing or advise, assist or seek to persuade others to take any action Third Party with respect to any of the foregoing. Notwithstanding the foregoing, (a) [the restrictions in Sections 3.1(d)or assist, 3.1(e)advise, 3.1(f), 3.1(g)(iii), 3.1(g)(iv), 3.1(g)(v) and 3.1(h) (knowingly encourage or knowingly influence any Third Party to the extent it relates take any action or make any statement with respect to any of the foregoing, or otherwise take or cause any action or make any statement inconsistent with any of the foregoing; or
(l) (i) contest the validity of, or (ii) publicly request any waiver of, the obligations set forth in this Section 2; provided, that clause (i) shall not be deemed to prevent SRS from defending any claim by the Company that SRS has breached this Section 2. Notwithstanding anything in this Agreement to the contrary, the foregoing provisions of this Section 2 shall not be deemed to (x) prohibit SRS or its directors, officers, partners, employees, members or agents (acting in such capacity) from communicating privately with the Company’s directors or officers so long as such communications are not intended to, and would not reasonably be expected to, require any public disclosure (including under Section 13(d) of the Exchange Act and related regulations) of such communications (except to the extent permitted by Section 2(d)) or (y) restrict any Applicable Director in the exercise of his fiduciary duties to the Company and all of its stockholders. Notwithstanding anything to the contrary in this Agreement, Sections 2(d), (f), (g), (h) and (k) shall be of no further force and effect (and the other subsections of Section 2 shall not be deemed to prohibit actions taken by SRS that otherwise would be prohibited by Sections 2(d), (f), (g), (h) and (k) had they been in effect to the extent such actions are taken in pursuit of a Change of Control Transaction; provided, that for the avoidance of doubt, Section 2(a) shall continue to fully apply at any time in accordance with its terms except for offers (but not acquisitions of Voting Securities) relating to a Change of Control Transaction) in the event that (i) the Company fails to comply in all material respects with its obligations under Article 5 hereofshall enter into a definitive agreement providing for (A) a merger, consolidation, business combination or similar transaction immediately following which failure continues unremedied for a period the stockholders of 10 business days following receipt by the Company immediately prior to the consummation of such transaction (other than stockholders of the Company who have entered into, or who are members of a written notice from the Block Sale Transferee Group any member of such failure or (ii) the Block Sale Transferee which has relinquished its nomination rights pursuant to Article 5 and all Block Sale Transferee nominated directors have resigned; or (b)]5 in the event that (x) the Board of Directors determines that entered into, a definitive agreement with the Company should engage in any respect of a transaction of the type described in Section 3.1(e)(ithis clause (A)) will hold less than 80% of the total combined voting power of the Company or 3.1(e)(ii)any successor holding company, (B) a tender or exchange offer for 20% or more of the Block Sale Transferee shall be permitted to participate in such Board of Directors’ approved transaction as a shareholder on the same terms and conditions as any other shareholder Voting Securities of the Company, (C) a sale of 20% or more of the consolidated assets of the Company and its subsidiaries (including equity securities of subsidiaries) in a single transaction or series of related transactions (other than in the ordinary course of business), or (D) a sale of 20% or more of the Voting Securities outstanding immediately prior to such sale in a single transaction or series of related transactions (each of (A), (B), (C) and (D) constituting a “Change of Control Transaction”), (ii) the Company formally or publicly commences a process contemplating a Change of Control Transaction and (x) does not provide SRS an opportunity to participate in such a process on the same terms as Third Parties, or (y) includes conditions to participation that are designed to prevent SRS from participating in such a process on the Board of Directors determines that the Company should solicit from one same terms as Third Parties or more Persons (iii) a Third Party shall commence a tender offer or enter into discussions with one exchange offer or more Persons regarding, or invites any other Person or group to otherwise make a proposal (without similarly inviting bona fide public offer to acquire the Block Sale Transferee to make a similar proposal) with respect to an acquisition of (i) Company, all or substantially all of the equity securities or assets of the Company or any of its Subsidiaries (by merger, tender offer or otherwise) or (ii) any material assets or businesses of the Company or any of its Subsidiaries, the Block Sale Transferee shall have the right to make a non-public competing proposal to the Board of Directors in compliance with any written procedures generally applicable to Persons making proposals provided by the Company 5 Note to form: enumerated restrictions to be removed if the Block Sale Transferee does not accept the board nomination rights. or the Board of Directors or (z) any third party that is not an Affiliate of the Block Sale Transferee makes a bona fide offer or proposal, with respect to a matter described in Section 3.1(d) or 3.1(e) above (a “Third Party Proposal”), the Block Sale Transferee (A) shall have the right to make a non-public competing proposal to the Board of Directors and may publicly announce that it has made a competing proposal to the Board of Directors so long as such public announcement does not constitute an offer or a solicitation to any recipient thereof and (B) may tender, exchange or otherwise sell or transfer its Company Common Shares (or other equity securities of the Company) to such third party in accordance with the Third Party Proposal; provided, however, that in the case of clauses (y) and (z), the Block Sale Transferee shall be prohibited from participating with, joining in a group with or providing financing to any such third party). [For the avoidance of doubt, any discussions involving the directors nominated by the Block Sale Transferee pursuant to Article 5 hereof (i) at a meeting of the Board of Directors or (ii) with management of the Company, other members or 50% or more of the Board of Directors or any Voting Securities of the Company’s advisors or representatives, in the case of clauses (i) and (ii)each case, while acting in such directors’ capacity as members of the Board of Directors, shall not be deemed to violate any of the provisions resulting from a violation of this Article 3.]6Section 2.
Appears in 2 contracts
Samples: Cooperation Agreement (SRS Investment Management, LLC), Cooperation Agreement (Avis Budget Group, Inc.)
Standstill Provisions. During (a) Starboard agrees that from the date of this Agreement until the earlier of (x) the date that is fifteen (15) business days prior to the deadline for the submission of stockholder nominations for the 2017 Annual Meeting pursuant to the Bylaws or (y) the date that is one hundred (100) days prior to the first anniversary of the 2016 Annual Meeting (the “Standstill Period”), unless expressly authorized in writing to do so by a majority neither it nor any of the members of the Board of Directors, acting through a committee of directors that qualify as “independent directors” as defined by applicable stock exchange listing rules [(which term, for this purpose, will exclude any directors nominated by the Block Sale Transferee)]1, the Block Sale Transferee shall notits Affiliates or Associates under its control will, and shall it will cause each of its Affiliates and Associates under its control not to, directly or indirectly, acting alone or as part of a groupin any manner:
(ai) makeengage in any solicitation of proxies or consents or become a “participant” in a “solicitation” (as such terms are defined in Regulation 14A under the Exchange Act) of proxies or consents (including, without limitation, any solicitation of consents that seeks to call a special meeting of stockholders), in each case, with respect to securities of the Company;
(ii) form, join or in any way participate in any solicitation “group” (within the meaning of any proxy [(but without regard to the exclusion set forth in Rule 14a-1(l)(2)(ivSection 13(d)(3) under of the Exchange Act from the definition of “solicitation”)]2 to vote any Company Common Shares (or other equity securities of the CompanyAct) with respect to the Common Stock (other than a “group” that includes all or some of the persons identified on Exhibit A, but does not include any matter other entities or persons not identified on Exhibit A as of the date hereof); provided, however, that nothing herein shall limit the ability of an Affiliate of Starboard to join the “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;
(includingiii) deposit any Common Stock in any voting trust or subject any Common Stock to any arrangement or agreement with respect to the voting of any Common Stock, without limitationother than any such voting trust, arrangement or agreement solely among the members of Starboard and otherwise in accordance with this Agreement;
(iv) seek, or encourage any person, to submit nominations in furtherance of a “contested solicitation solicitation” for the election or removal of directors with respect to the Company)Company or seek, encourage or take any other than solicitations action with respect to the election or acting removal of any directors, provided, however, that nothing in this Agreement shall prevent Starboard or its Affiliates or Associates from taking actions in furtherance of identifying director candidates in connection with the 2017 Annual Meeting so long as such actions do not create a participant public disclosure obligation for Starboard or the Company and are undertaken on a basis reasonably designed to be confidential and in support accordance with Starboard’s normal practices;
(A) make any proposal for consideration by stockholders at any annual or special meeting of all stockholders of the Company’s nominees [including, (B) make any offer or proposal (with or without limitationconditions) with respect to any merger, acquisition, recapitalization, restructuring, disposition or other business combination involving Starboard and the nominees of Company, (C) unless otherwise authorized by the Block Sale Transferee pursuant Board, affirmatively solicit a third party, on an unsolicited basis, to Article 5]3;
make an offer or proposal (bwith or without conditions) formwith respect to any merger, join acquisition, recapitalization, restructuring, disposition or other business combination involving the Company, or encourage, initiate or support any third party in making such an offer or in proposal, (D) publicly comment on any way participate in a group (for the avoidance of doubtthird party proposal regarding any merger, the Block Sale Transferee shall not be deemed to have formedacquisition, joined in recapitalization, restructuring, disposition, or in any way participated in a group with the Company as a result of the Block Sale Transferee’s execution of this Agreement) other business combination with respect to the Company Common Shares by such third party prior to such proposal becoming public or (E) call or other equity securities of the Company) or deposit any Company Common Shares (or other equity securities of the Company) in a voting trust or similar arrangement or subject any Company Common Shares (or other equity securities of the Company) to any voting agreement or similar arrangement, or grant any proxy with respect to any Company Common Shares (or other equity securities of the Company) (other than to a designated representative of the 1 Note to form: bracketed language to be removed if Block Sale Transferee does not accept the board nomination rights. 2 Note to form: bracketed language to be removed if Block Sale Transferee does not accept the board nomination rights. 3 Note to form: bracketed language to be removed if Block Sale Transferee does not accept the board nomination rights. Company pursuant to a proxy statement of the Company), other than as contemplated by the Governance Agreement or the Stockholders Agreement or the transactions contemplated thereby;
(c) seek to call, or to request the calling of, or call a special meeting of the stockholders of the Company, or seek to make, or make, a stockholder proposal (whether pursuant to Rule 14a-8 under the Exchange Act or otherwise) at any meeting of the stockholders of the Company, or make a request for a list of the Company’s stockholders, or[, other than pursuant to the Block Sale Transferee’s nomination rights in accordance with Article 5 of this Agreement,]4 seek election of a representative to the Board of Directors, seek to place a representative on the Board of Directors or seek the removal of any director from the Board of Directors, or otherwise acting alone, or by participating in a group, seek to control or influence the governance or policies of the Company;
(dvi) effect seek, alone or in concert with others, representation on the Board, except as specifically permitted in this Agreement;
(vii) seek to effect (includingadvise, without limitationencourage, by entering into support or influence any discussions, negotiations, agreements person with respect to the voting or understandings whether or not legally enforceable with any third Person), offer or propose (whether publicly or otherwise) to effect, or cause or participate in, or in any way assist or facilitate any other Person to effect or seek, offer or propose (whether publicly or otherwise) to effect or participate in any acquisition disposition of any Company Common Shares (or other equity securities of the Company) (Company at any annual or Beneficial Ownership thereof) in excess special meeting of the Ownership Limitationstockholders, except in accordance with Section 2.11; providedor
(viii) make any request or submit any proposal to amend the terms of this Agreement other than through non-public communications with the Company that would not be reasonably determined to trigger public disclosure obligations for any Party.
(b) Except as expressly provided in Section 1 or Section 2(a), thateach member of Starboard shall be entitled to: (i) vote their shares on any other proposal duly brought before the 2016 Annual Meeting or otherwise vote as each member of Starboard determines in its sole discretion and (ii) disclose, for the avoidance of doubtpublicly or otherwise, the Block Sale Transferee is permitted how it intends to Transfer vote or act with respect to an unaffiliated third party any Company Common Shares (or other equity securities of the Company) Beneficially Owned , any stockholder proposal or other matter to be voted on by the Block Sale Transferee, subject to the provisions of Article 8 hereof, if applicable;
(e) effect or seek to effect (including, without limitation, by entering into any discussions, negotiations, agreements or understandings whether or not legally enforceable with any third Person), offer or propose (whether publicly or otherwise) to effect, or cause or participate in, or in any way assist or facilitate any other Person to effect or seek, offer or propose (whether publicly or otherwise) to effect or participate in (i) any tender offer or exchange offer, merger, acquisition, share exchange or other business combination involving the Company or any of its Subsidiaries, (ii) any recapitalization, restructuring, liquidation, dissolution or other extraordinary transaction with respect to the Company or any of its Subsidiaries or any material portion of its or their businesses, or (iii) any acquisition of any material assets or businesses stockholders of the Company or any of its Subsidiaries;and the reasons therefore.
(f) publicly disclose, or cause or, in a material manner, facilitate the public disclosure (including without limitation through the filing by it of any document or report with the SEC or any other governmental agency or any disclosure to any 4 Note to form: bracketed language to be removed if Block Sale Transferee does not accept the board nomination rights. journalist, member of the media or securities analyst) of any intent, purpose, plan or proposal to obtain any waiver, or consent under, or any amendment of, any of the provisions of Section 2.1, this Section 3.1, or Article 4 (except as described in Section 4.1) or bring any action to (i) contest the validity of Section 2.1, this Section 3.1 or Article 4, or (ii) seek a release from the restrictions contained in Section 2.1, this Section 3.1 or Article 4;
(g) unless required by law, make or issue or cause to be made or issued any public disclosure, announcement or statement (including without limitation the filing of any document or report with the SEC or any other governmental agency or any disclosure to any journalist, member of the media or securities analyst) (i) in support of any solicitation described in paragraph (a) above (other than solicitations by the Company), (ii) in support of any matter described in paragraph (c) above, (iii) concerning any potential matter described Nothing in paragraph (d) above; (iv) concerning any potential matter described in paragraph (e) above; or (v) negatively commenting upon the Company’s corporate strategy, business, corporate activities, board of directors or management (for the avoidance of doubt, making any factual statement about the Company’s corporate strategy, business, corporate activities, board of directors or management shall not be prohibited by this Section 3.1(g)(v)); or
(h) enter into any discussions, negotiations, agreements or understandings with any Person with respect to any of the foregoing or advise, assist or seek to persuade others to take any action with respect to any of the foregoing. Notwithstanding the foregoing, (a) [the restrictions in Sections 3.1(d), 3.1(e), 3.1(f), 3.1(g)(iii), 3.1(g)(iv), 3.1(g)(v) and 3.1(h) (to the extent it relates to any of the foregoing2(a) shall not apply at any time that (i) be deemed to limit the Company fails to comply exercise in all material respects with its obligations under Article 5 hereof, which failure continues unremedied for a period of 10 business days following receipt good faith by the Company Appointed Directors of a written notice from the Block Sale Transferee of such failure or (ii) the Block Sale Transferee has relinquished its nomination rights pursuant to Article 5 and all Block Sale Transferee nominated their fiduciary duties solely in their capacities as directors have resigned; or (b)]5 in the event that (x) the Board of Directors determines that the Company should engage in any transaction described in Section 3.1(e)(i) or 3.1(e)(ii), the Block Sale Transferee shall be permitted to participate in such Board of Directors’ approved transaction as a shareholder on the same terms and conditions as any other shareholder of the Company, (y) the Board of Directors determines that the Company should solicit from one or more Persons or enter into discussions with one or more Persons regarding, or invites any other Person or group to make a proposal (without similarly inviting the Block Sale Transferee to make a similar proposal) with respect to an acquisition of (i) all or substantially all of the equity securities or assets of the Company or any of its Subsidiaries (by merger, tender offer or otherwise) or (ii) any material assets or businesses of the Company or any of its Subsidiaries, the Block Sale Transferee shall have the right to make a non-public competing proposal to the Board of Directors in compliance with any written procedures generally applicable to Persons making proposals provided by the Company 5 Note to form: enumerated restrictions to be removed if the Block Sale Transferee does not accept the board nomination rights. or the Board of Directors or (z) any third party that is not an Affiliate of the Block Sale Transferee makes a bona fide offer or proposal, with respect to a matter described in Section 3.1(d) or 3.1(e) above (a “Third Party Proposal”), the Block Sale Transferee (A) shall have the right to make a non-public competing proposal to the Board of Directors and may publicly announce that it has made a competing proposal to the Board of Directors so long as such public announcement does not constitute an offer or a solicitation to any recipient thereof and (B) may tender, exchange or otherwise sell or transfer its Company Common Shares (or other equity securities of the Company) to such third party in accordance with the Third Party Proposal; provided, however, that in the case of clauses (y) and (z), the Block Sale Transferee shall be prohibited from participating with, joining in a group manner consistent with or providing financing to any such third party). [For the avoidance of doubt, any discussions involving the directors nominated by the Block Sale Transferee pursuant to Article 5 hereof (i) at a meeting of the Board of Directors or (ii) with management of the Company, other members of the Board of Directors or any of the Companytheir and Starboard’s advisors or representatives, in the case of clauses (i) and (ii), while acting in such directors’ capacity as members of the Board of Directors, shall not be deemed to violate any of the provisions of obligations under this Article 3.]6Agreement.
Appears in 2 contracts
Samples: Board Composition Agreement (Starboard Value LP), Board Composition Agreement (Insperity, Inc.)
Standstill Provisions. During (a) MIG agrees that, from the date of this Agreement until the earlier of (x) the date that is fifteen (15) business days prior to the deadline for the submission of stockholder nominations for the Company’s 2021 annual meeting of stockholders (the “2021 Annual Meeting”) pursuant to the Company’s Amended and Restated Bylaws (as may be amended or restated, the “Bylaws”) and (y) the date that is one hundred (100) days prior to the first anniversary of the date on which the Company first mailed its proxy materials or a notice of availability of proxy materials for the 2020 Annual Meeting (the “Standstill Period”), unless expressly authorized in writing to do so by a majority of the members of the Board of Directors, acting through a committee of directors that qualify as “independent directors” as defined by applicable stock exchange listing rules [(which term, for this purpose, will exclude any directors nominated by the Block Sale Transferee)]1, the Block Sale Transferee MIG shall not, and MIG shall cause each of its controlled Affiliates and Associates not to, in each case directly or indirectly, acting alone or as part of a groupin any manner:
(ai) makeengage in any solicitation of proxies or consents or become a “participant” in a “solicitation” (as such terms are defined in Regulation 14A under the Exchange Act) of proxies or consents (including, without limitation, any solicitation of consents that seeks to call a special meeting of stockholders), in each case, with respect to any securities of the Company or any securities convertible or exchangeable into or exercisable for any such securities (collectively, the “securities of the Company”);
(ii) form, join or in any way participate in any solicitation “group” (within the meaning of any proxy [(but without regard to the exclusion set forth in Rule 14a-1(l)(2)(ivSection 13(d)(3) under of the Exchange Act from the definition Act) with any persons who are not Affiliates of “solicitation”)]2 MIG with respect to vote any Company Common Shares (or other equity securities of the Company;
(iii) deposit any securities of the Company in any voting trust or similar arrangement, or subject any securities of the Company to any arrangement or agreement with respect to the voting thereof, other than any matter such voting trust, arrangement or agreement solely among the members of MIG and otherwise in accordance with this Agreement;
(includingiv) seek or submit, without limitationor encourage any person or entity to seek or submit, any nomination(s) in furtherance of a “contested solicitation solicitation” for the appointment, election or removal of directors with respect to the Company)Company or seek, or encourage or take any other than solicitations action with respect to the appointment, election or acting removal of any directors; provided, however, that nothing in this Agreement shall prevent MIG or its Affiliates or Associates from taking actions in furtherance of identifying director candidates in connection with the 2021 Annual Meeting so long as such actions do not create a participant in support public disclosure obligation for MIG or the Company and are undertaken on a basis reasonably designed to be confidential;
(A) make any proposal for consideration by stockholders at any annual or special meeting of all stockholders of the Company or through any action by written consent of stockholders or referendum of stockholders of the Company’s nominees [including, (B) make any offer or proposal (with or without limitationconditions) with respect to any merger, the nominees of the Block Sale Transferee pursuant to Article 5]3;
takeover, tender (bor exchange) formoffer, join in acquisition, recapitalization, restructuring, disposition or in any way participate in a group (for the avoidance of doubt, the Block Sale Transferee shall not be deemed to have formed, joined in other business combination or in any way participated in a group with similar transaction involving the Company as and/or any of its subsidiaries, (C) affirmatively solicit a result third party to make an offer or proposal (with or without conditions) with respect to any merger, takeover, tender (or exchange) offer, acquisition, recapitalization, restructuring, disposition or other business combination or similar transaction involving the Company and/or any of the Block Sale Transferee’s execution of this Agreementits subsidiaries, or publicly encourage, initiate or support any third party in making such an offer or proposal, (D) publicly comment on any third party proposal regarding any merger, takeover, tender (or exchange) offer, acquisition, recapitalization, restructuring, disposition, or other business combination or similar transaction with respect to the Company Common Shares (or other equity securities and/or any of its subsidiaries prior to such third party proposal becoming public and, thereafter, until the expiration of the Company) or deposit any Company Common Shares (or Advisor Period, in each case, in accordance with, and subject to, the other equity securities provisions of the Company) in a voting trust or similar arrangement or subject any Company Common Shares (or other equity securities of the Company) to any voting agreement or similar arrangementthis Agreement, or grant any proxy with respect to any Company Common Shares (E) call or other equity securities of the Company) (other than to a designated representative of the 1 Note to form: bracketed language to be removed if Block Sale Transferee does not accept the board nomination rights. 2 Note to form: bracketed language to be removed if Block Sale Transferee does not accept the board nomination rights. 3 Note to form: bracketed language to be removed if Block Sale Transferee does not accept the board nomination rights. Company pursuant to a proxy statement of the Company), other than as contemplated by the Governance Agreement or the Stockholders Agreement or the transactions contemplated thereby;
(c) seek to call, or to request the calling of, or call a special meeting of the stockholders of the Company, or take or seek to make, or make, a stockholder proposal (whether pursuant to Rule 14a-8 under the Exchange Act or otherwise) at any meeting take action by written consent of the stockholders of the Company, or make a request for a list of the Company’s stockholders, or[, other than pursuant to the Block Sale Transferee’s nomination rights in accordance with Article 5 of this Agreement,]4 seek election of a representative to the Board of Directors, seek to place a representative on the Board of Directors or seek the removal of any director from the Board of Directors, or otherwise acting alone, or by participating in a group, seek to control or influence the governance or policies of the Company;
(dvi) effect seek, alone or seek to effect in concert with others, representation on the Board;
(including, without limitation, by entering into any discussions, negotiations, agreements or understandings whether or not legally enforceable with any third Person)vii) acquire, offer or propose to acquire, or agree to acquire, whether by purchase, tender or exchange offer, through the acquisition of control of another person, by joining a partnership, limited partnership, syndicate or other group (whether publicly including any group of persons that would be treated as a single “person” under Section 13(d) of the Exchange Act), through swap or hedging transactions or otherwise) to effect, or cause or participate in, or in any way assist or facilitate any other Person to effect or seek, offer or propose (whether publicly or otherwise) to effect or participate in any acquisition of any Company Common Shares (or other equity securities of the Company) (Company or Beneficial Ownership thereof) in excess any rights decoupled from the underlying securities of the Ownership LimitationCompany that would result in MIG (together with its Affiliates) owning, controlling or otherwise having any beneficial or other ownership interest in more than 9.9% of the shares of Common Stock outstanding at such time (as adjusted for any stock splits, reclassifications, combinations, stock dividends or similar actions by the Company);
(viii) advise, encourage, support or influence any person or entity with respect to the voting or disposition of any securities of the Company at any annual or special meeting of stockholders, except in accordance with Section 2.1; provided, that, for the avoidance of doubt, the Block Sale Transferee is permitted to Transfer to an unaffiliated third party any Company Common Shares (or other equity securities of the Company) Beneficially Owned by the Block Sale Transferee, subject to the provisions of Article 8 hereof, if applicable1(b)(iii);
(e) effect or seek to effect (including, without limitation, by entering into any discussions, negotiations, agreements or understandings whether or not legally enforceable with any third Person), offer or propose (whether publicly or otherwise) to effect, or cause or participate in, or in any way assist or facilitate any other Person to effect or seek, offer or propose (whether publicly or otherwise) to effect or participate in (i) any tender offer or exchange offer, merger, acquisition, share exchange or other business combination involving the Company or any of its Subsidiaries, (ii) any recapitalization, restructuring, liquidation, dissolution or other extraordinary transaction with respect to the Company or any of its Subsidiaries or any material portion of its or their businesses, or (iii) any acquisition of any material assets or businesses of the Company or any of its Subsidiaries;
(f) publicly disclose, or cause or, in a material manner, facilitate the public disclosure (including without limitation through the filing by it of any document or report with the SEC or any other governmental agency or any disclosure to any 4 Note to form: bracketed language to be removed if Block Sale Transferee does not accept the board nomination rights. journalist, member of the media or securities analyst) of any intent, purpose, plan or proposal to obtain any waiver, or consent under, or any amendment of, any of the provisions of Section 2.1, this Section 3.1, or Article 4 (except as described in Section 4.1) or bring any action to (i) contest the validity of Section 2.1, this Section 3.1 or Article 4, or (ii) seek a release from the restrictions contained in Section 2.1, this Section 3.1 or Article 4;
(g) unless required by law, make or issue or cause to be made or issued any public disclosure, announcement or statement (including without limitation the filing of any document or report with the SEC or any other governmental agency or any disclosure to any journalist, member of the media or securities analyst) (i) in support of any solicitation described in paragraph (a) above (other than solicitations by the Company), (ii) in support of any matter described in paragraph (c) above, (iii) concerning any potential matter described in paragraph (d) above; (iv) concerning any potential matter described in paragraph (e) above; or (v) negatively commenting upon the Company’s corporate strategy, business, corporate activities, board of directors or management (for the avoidance of doubt, making any factual statement about the Company’s corporate strategy, business, corporate activities, board of directors or management shall not be prohibited by this Section 3.1(g)(v)); or
(hix) enter into any discussions, negotiations, agreements or understandings with any Person with respect to any of the foregoing or advise, assist or seek to persuade others to take any action third party with respect to any of the foregoing. Notwithstanding ; or
(x) make any request or submit any proposal to amend the foregoing, terms of this Agreement other than through non-public communications with the Company or the Board that would not be reasonably determined to trigger public disclosure obligations for any Party.
(ab) [the restrictions Except as expressly provided in Sections 3.1(dSection 1 or Section 2(a), 3.1(e), 3.1(f), 3.1(g)(iii), 3.1(g)(iv), 3.1(g)(v) and 3.1(h) (MIG shall be entitled to the extent it relates to any of the foregoing) shall not apply at any time that (i) the Company fails to comply vote any shares of Common Stock that it beneficially owns as MIG determines in all material respects with its obligations under Article 5 hereof, which failure continues unremedied for a period of 10 business days following receipt by the Company of a written notice from the Block Sale Transferee of such failure or sole discretion and (ii) the Block Sale Transferee has relinquished its nomination rights pursuant subject to Article 5 and all Block Sale Transferee nominated directors have resigned; Section 12, disclose, publicly or (b)]5 in the event that (x) the Board of Directors determines that the Company should engage in otherwise, how it intends to vote or act with respect to any transaction described in Section 3.1(e)(i) or 3.1(e)(ii), the Block Sale Transferee shall be permitted to participate in such Board of Directors’ approved transaction as a shareholder on the same terms and conditions as any other shareholder securities of the Company, (y) any stockholder proposal or other matter to be voted on by the Board stockholders of Directors determines that the Company should solicit and the reasons therefor.
(c) Notwithstanding anything in Section 2(a) or elsewhere in this Agreement, nothing in this Agreement shall prohibit or restrict MIG from one or more Persons or enter into discussions with one or more Persons regarding, or invites any other Person or group to make a proposal (without similarly inviting the Block Sale Transferee to make a similar proposal) with respect to an acquisition of (i) all or substantially all of the equity securities or assets of the Company or any of its Subsidiaries (by merger, tender offer or otherwise) or (ii) any material assets or businesses of the Company or any of its Subsidiaries, the Block Sale Transferee shall have the right to make a non-public competing proposal to communicating privately with the Board of Directors in compliance with any written procedures generally applicable to Persons making proposals provided by the Company 5 Note to form: enumerated restrictions to be removed if the Block Sale Transferee does not accept the board nomination rights. or the Board of Directors or (z) any third party that is not an Affiliate of the Block Sale Transferee makes a bona fide offer or proposal, with respect to a matter described in Section 3.1(d) or 3.1(e) above (a “Third Party Proposal”), the Block Sale Transferee (A) shall have the right to make a non-public competing proposal to the Board of Directors and may publicly announce that it has made a competing proposal to the Board of Directors so long as such public announcement does not constitute an offer or a solicitation to any recipient thereof and (B) may tender, exchange or otherwise sell or transfer its Company Common Shares (or other equity securities of the Company) to such third party in accordance with the Third Party Proposal; provided, however, that in the case of clauses (y) and (z), the Block Sale Transferee shall be prohibited from participating with, joining in a group with or providing financing to any such third party). [For the avoidance of doubt, any discussions involving the directors nominated by the Block Sale Transferee pursuant to Article 5 hereof (i) at a meeting of the Board of Directors or (ii) with management of the Company, other members of the Board of Directors or any of the Company’s advisors or representativesofficers regarding any matter, in the case so long as such communications are not intended to, and would not reasonably be expected to, require any public disclosure of clauses (i) and such communications, (ii), while acting in such directors’ capacity as members ) communicating with stockholders of the Board of DirectorsCompany and others in a manner that does not otherwise violate Section 2(a) or Section 12, shall not be deemed or (iii) taking any action necessary to violate comply with any of the provisions of this Article 3.]6law, rule or regulation or any action required by any governmental or regulatory authority or stock exchange that has jurisdiction over MIG.
Appears in 2 contracts
Samples: Shareholder Agreement (Groupon, Inc.), Agreement (MIG Capital, LLC)
Standstill Provisions. During (a) Starboard agrees that, from the date of this Agreement until the earlier of (x) the date that is fifteen (15) business days prior to the deadline for the submission of stockholder nominations for the 2022 annual meeting of the Company’s stockholders (the “2022 Annual Meeting”) pursuant to the Company’s Amended and Restated By-laws or (y) the date that is ninety (90) days prior to the first anniversary of the 2021 Annual Meeting (the “Standstill Period”), unless expressly authorized in writing to do so by a majority of the members of the Board of Directors, acting through a committee of directors that qualify as “independent directors” as defined by applicable stock exchange listing rules [(which term, for this purpose, will exclude any directors nominated by the Block Sale Transferee)]1, the Block Sale Transferee Starboard shall not, and shall cause its Affiliates each Covered Person not to, in each case directly or indirectly, acting alone or as part of a groupin any manner:
(ai) makeengage in any solicitation of proxies or consents or become a “participant” in a “solicitation” (as such terms are defined in Regulation 14A under the Exchange Act) of proxies or consents, in each case, with respect to any securities of the Company;
(ii) form, join or in any way participate in any solicitation “group” (within the meaning of any proxy [(but without regard to the exclusion set forth in Rule 14a-1(l)(2)(ivSection 13(d)(3) under of the Exchange Act from the definition of “solicitation”)]2 to vote any Company Common Shares (or other equity securities of the CompanyAct) with respect to any matter securities of the Company (includingother than a “group” that includes all or some of the members of Starboard, without limitationbut does not include any other entities or persons that are not members of Starboard as of the date hereof); provided, however, that nothing herein shall limit the ability of an Affiliate of Starboard to join the “group” following the execution of this Agreement, so long as any such Affiliate agrees to be bound in writing by the terms and conditions of this Agreement;
(iii) deposit any Common Shares in any voting trust or subject any Common Shares to any arrangement or agreement with respect to the voting of any Common Shares, other than any such voting trust, arrangement or agreement solely among the members of Starboard and otherwise in accordance with this Agreement; seek or submit, or encourage any person or entity to seek or submit, nomination(s) in furtherance of a “contested solicitation solicitation” for the appointment, election or removal of directors with respect to the Company)Company or seek, encourage or take any other than solicitations action with respect to the appointment, election or acting removal of any directors; provided, however, that nothing in this Agreement shall prevent Starboard 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 participant in support of all of public disclosure obligation for Starboard or the Company, are not publicly disclosed by Starboard or its representatives, Affiliates or Associates and are undertaken on a basis reasonably designed to be confidential and in accordance in all material respects with Starboard’s nominees [including, without limitation, normal practices in the nominees of the Block Sale Transferee pursuant to Article 5]3circumstances;
(biv) form, join in (A) make any proposal for consideration by stockholders at any annual or in any way participate in a group (for the avoidance special meeting of doubt, the Block Sale Transferee shall not be deemed to have formed, joined in or in any way participated in a group with stockholders of the Company as a result or through any referendum of the Block Sale Transferee’s execution of this Agreementstockholders, (B) make any offer or proposal (with or without conditions) with respect to the Company Common Shares any merger, tender (or other equity securities of the Companyexchange) or deposit any Company Common Shares (or other equity securities of the Company) in a voting trust or similar arrangement or subject any Company Common Shares (or other equity securities of the Company) to any voting agreement or similar arrangement, or grant any proxy with respect to any Company Common Shares (or other equity securities of the Company) (other than to a designated representative of the 1 Note to form: bracketed language to be removed if Block Sale Transferee does not accept the board nomination rights. 2 Note to form: bracketed language to be removed if Block Sale Transferee does not accept the board nomination rights. 3 Note to form: bracketed language to be removed if Block Sale Transferee does not accept the board nomination rights. Company pursuant to a proxy statement of the Company), other than as contemplated by the Governance Agreement or the Stockholders Agreement or the transactions contemplated thereby;
(c) seek to call, or to request the calling of, or call a special meeting of the stockholders of the Company, or seek to make, or make, a stockholder proposal (whether pursuant to Rule 14a-8 under the Exchange Act or otherwise) at any meeting of the stockholders of the Company, or make a request for a list of the Company’s stockholders, or[, other than pursuant to the Block Sale Transferee’s nomination rights in accordance with Article 5 of this Agreement,]4 seek election of a representative to the Board of Directors, seek to place a representative on the Board of Directors or seek the removal of any director from the Board of Directors, or otherwise acting alone, or by participating in a group, seek to control or influence the governance or policies of the Company;
(d) effect or seek to effect (including, without limitation, by entering into any discussions, negotiations, agreements or understandings whether or not legally enforceable with any third Person), offer or propose (whether publicly or otherwise) to effect, or cause or participate in, or in any way assist or facilitate any other Person to effect or seek, offer or propose (whether publicly or otherwise) to effect or participate in any acquisition of any Company Common Shares (or other equity securities of the Company) (or Beneficial Ownership thereof) in excess of the Ownership Limitation, except in accordance with Section 2.1; provided, that, for the avoidance of doubt, the Block Sale Transferee is permitted to Transfer to an unaffiliated third party any Company Common Shares (or other equity securities of the Company) Beneficially Owned by the Block Sale Transferee, subject to the provisions of Article 8 hereof, if applicable;
(e) effect or seek to effect (including, without limitation, by entering into any discussions, negotiations, agreements or understandings whether or not legally enforceable with any third Person), offer or propose (whether publicly or otherwise) to effect, or cause or participate in, or in any way assist or facilitate any other Person to effect or seek, offer or propose (whether publicly or otherwise) to effect or participate in (i) any tender offer or exchange offer, mergertakeover offer, acquisition, share exchange recapitalization, restructuring, disposition or other business combination involving the Company or any of its Subsidiariessubsidiaries, (iiC) solicit a third party to make an offer or proposal (with or without conditions) with respect to any merger, tender (or exchange) offer, takeover offer, acquisition, recapitalization, restructuring, liquidation, dissolution disposition or other extraordinary transaction business combination involving the Company or any of its subsidiaries, or publicly encourage, initiate or support any third party in making such an offer or proposal, (D) publicly comment on any third party proposal regarding any merger, tender (or exchange) offer, takeover offer, acquisition, recapitalization, restructuring, disposition, or other business combination with respect to the Company or any of its Subsidiaries subsidiaries by such third party prior to such proposal becoming public, (E) call or any material portion seek to call a special meeting of its or their businessesstockholders, or (iiiF) act by written consent;
(v) seek, alone or in concert with others, representation on the Board, except as specifically permitted in Section 1;
(vi) advise, encourage, support or influence any acquisition person or entity with respect to the voting or disposition of any material assets or businesses securities of the Company at any annual or any special meeting of its Subsidiaries;stockholders, except in accordance with Section 1; or
(fvii) publicly disclose, make any request or cause or, in a material manner, facilitate submit any proposal to amend the terms of this Agreement other than through non-public communications with the Company that would not be reasonably determined to trigger public disclosure obligations for any Party.
(b) Except as expressly provided in Section 1 (including without limitation through Sections 1(b)(ii) and 1(b)(iii) with respect to the filing by it of any document or report with the SEC or any other governmental agency or any disclosure to any 4 Note to form: bracketed language to 2021 Annual Meeting) and Section 2(a), Starboard shall be removed if Block Sale Transferee does not accept the board nomination rights. journalist, member of the media or securities analyst) of any intent, purpose, plan or proposal to obtain any waiver, or consent under, or any amendment of, any of the provisions of Section 2.1, this Section 3.1, or Article 4 (except as described in Section 4.1) or bring any action entitled to (i) contest vote the validity of Section 2.1, this Section 3.1 or Article 4, or Common Shares that it beneficially owns as it determines in its sole discretion and (ii) seek a release from the restrictions contained in subject to Section 2.112, this Section 3.1 disclose, publicly or Article 4;
(g) unless required by lawotherwise, make how it intends to vote or issue or cause to be made or issued any public disclosure, announcement or statement (including without limitation the filing of any document or report with the SEC or any other governmental agency or any disclosure to any journalist, member of the media or securities analyst) (i) in support of any solicitation described in paragraph (a) above (other than solicitations by the Company), (ii) in support of any matter described in paragraph (c) above, (iii) concerning any potential matter described in paragraph (d) above; (iv) concerning any potential matter described in paragraph (e) above; or (v) negatively commenting upon the Company’s corporate strategy, business, corporate activities, board of directors or management (for the avoidance of doubt, making any factual statement about the Company’s corporate strategy, business, corporate activities, board of directors or management shall not be prohibited by this Section 3.1(g)(v)); or
(h) enter into any discussions, negotiations, agreements or understandings with any Person act with respect to any of the foregoing or advise, assist or seek to persuade others to take any action with respect to any of the foregoing. Notwithstanding the foregoing, (a) [the restrictions in Sections 3.1(d), 3.1(e), 3.1(f), 3.1(g)(iii), 3.1(g)(iv), 3.1(g)(v) and 3.1(h) (to the extent it relates to any of the foregoing) shall not apply at any time that (i) the Company fails to comply in all material respects with its obligations under Article 5 hereof, which failure continues unremedied for a period of 10 business days following receipt by the Company of a written notice from the Block Sale Transferee of such failure or (ii) the Block Sale Transferee has relinquished its nomination rights pursuant to Article 5 and all Block Sale Transferee nominated directors have resigned; or (b)]5 in the event that (x) the Board of Directors determines that the Company should engage in any transaction described in Section 3.1(e)(i) or 3.1(e)(ii), the Block Sale Transferee shall be permitted to participate in such Board of Directors’ approved transaction as a shareholder on the same terms and conditions as any other shareholder of the Company, (y) the Board of Directors determines that the Company should solicit from one or more Persons or enter into discussions with one or more Persons regarding, or invites any other Person or group to make a proposal (without similarly inviting the Block Sale Transferee to make a similar proposal) with respect to an acquisition of (i) all or substantially all of the equity securities or assets of the Company on any shareholder proposal or any of its Subsidiaries (other matter to be voted on by merger, tender offer or otherwise) or (ii) any material assets or businesses the shareholders of the Company or any of its Subsidiaries, and the Block Sale Transferee shall have the right to make a non-public competing proposal to the Board of Directors in compliance with any written procedures generally applicable to Persons making proposals provided by the Company 5 Note to form: enumerated restrictions to be removed if the Block Sale Transferee does not accept the board nomination rights. or the Board of Directors or reasons therefor.
(zc) any third party that is not an Affiliate of the Block Sale Transferee makes a bona fide offer or proposal, with respect to a matter described Nothing in Section 3.1(d) or 3.1(e) above (a “Third Party Proposal”), the Block Sale Transferee (A2(a) shall have the right to make a non-public competing proposal to the Board of Directors and may publicly announce that it has made a competing proposal to the Board of Directors so long as such public announcement does not constitute an offer or a solicitation to any recipient thereof and (B) may tender, exchange or otherwise sell or transfer its Company Common Shares (or other equity securities of the Company) to such third party in accordance with the Third Party Proposal; provided, however, that in the case of clauses (y) and (z), the Block Sale Transferee shall be prohibited from participating with, joining in a group with or providing financing to any such third party). [For the avoidance of doubt, any discussions involving the directors nominated by the Block Sale Transferee pursuant to Article 5 hereof (i) at a meeting of the Board of Directors or (ii) with management of the Company, other members of the Board of Directors or any of the Company’s advisors or representatives, in the case of clauses (i) and (ii), while acting in such directors’ capacity as members of the Board of Directors, shall not be deemed to violate limit the exercise in good faith by the New Independent Directors (or any Replacement Independent Directors, as applicable) of such person’s fiduciary duties solely in such person’s capacity as a director of the provisions of Company and in a manner consistent with such person’s and Starboard’s obligations under this Article 3.]6Agreement.
Appears in 2 contracts
Samples: Shareholder Agreement (Starboard Value LP), Shareholder Agreement (Aci Worldwide, Inc.)
Standstill Provisions. During (a) The Xxxxxx Parties agree that, from the date of this Agreement until the earlier of (x) the date that is thirty (30) calendar days prior to the deadline for the submission of shareholder nominations for the Company’s 2022 Annual Meeting pursuant to the Company’s Amended and Restated Bylaws, as amended, or (y) the date that is one hundred twenty (120) calendar days prior to the first anniversary of the 2021 Annual Meeting (the “Standstill Period, unless expressly authorized in writing to do so by a majority of the members of the Board of Directors, acting through a committee of directors that qualify as “independent directors” as defined by applicable stock exchange listing rules [(which term, for this purpose, will exclude any directors nominated by the Block Sale Transferee)]1”), the Block Sale Transferee Xxxxxx Parties shall not, and shall cause its each of their controlled Affiliates and Associates not to, in each case directly or indirectly, acting alone or as part of a groupin any manner:
(ai) make, or in any way participate engage in any solicitation of any proxy [proxies or become a “participant” in a “solicitation” (but without regard to the exclusion set forth as such terms are defined in Rule 14a-1(l)(2)(iv) Regulation 14A under the Exchange Act from the definition Act) of “solicitation”)]2 to vote any Company Common Shares (or other equity securities of the Company) with respect to any matter proxies (including, without limitation, any solicitation of consents that seeks to call a special meeting of shareholders), in each case, with respect to securities of the Company;
(ii) form, join, or in any way knowingly participate in any “group” (within the meaning of Section 13(d)(3) of the Exchange Act) with respect to the shares of the Common Stock (other than a “group” that includes all or some of the Xxxxxx Parties but does not include any other entities or persons that are not Xxxxxx Parties as of the date hereof); provided, however, that nothing herein shall limit the ability of an Affiliate of the Xxxxxx Parties to join the “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;
(iii) deposit any shares of Common Stock in any voting trust or subject any shares of Common Stock to any arrangement or agreement with respect to the voting of any shares of Common Stock, other than any such voting trust, arrangement or agreement solely among the Xxxxxx Parties and otherwise in accordance with this Agreement;
(iv) seek or submit, or knowingly encourage any person or entity to seek or submit, nomination(s) in furtherance of a “contested solicitation solicitation” for the appointment, election or removal of directors with respect to the CompanyCompany or seek, or knowingly encourage or take any other action with respect to the appointment, election or removal of any directors (except as specifically permitted in Section 1), other than solicitations in each case in opposition to the recommendation of the Board; provided, however, that nothing in this Agreement shall prevent the Xxxxxx Parties or acting their 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 participant in support public disclosure obligation for the Xxxxxx Parties or the Company and are undertaken on a basis reasonably designed to be confidential;
(A) make any proposal for consideration by shareholders at any annual or special meeting of all shareholders of the Company’s nominees [including, (B) make any offer or proposal (with or without limitationconditions) with respect to any merger, tender (or exchange) offer, acquisition, recapitalization, restructuring, disposition or other business combination involving the nominees of Xxxxxx Parties and the Block Sale Transferee pursuant Company, (C) solicit a third party to Article 5]3;
make an offer or proposal (bwith or without conditions) formwith respect to any merger, join tender (or exchange) offer, acquisition, recapitalization, restructuring, disposition or other business combination involving the Company, or publicly encourage, initiate or support any third party in making such an offer or in proposal, (D) publicly comment on any way participate in a group third party proposal regarding any merger, tender (for the avoidance of doubtor exchange) offer, the Block Sale Transferee shall not be deemed to have formedacquisition, joined in recapitalization, restructuring, disposition, or in any way participated in a group with the Company as a result of the Block Sale Transferee’s execution of this Agreement) other business combination with respect to the Company Common Shares by such third party or (E) call or other equity seek to call a special meeting of shareholders;
(vi) seek, alone or in concert with others, representation on the Board, except as specifically permitted in Section 1;
(vii) advise, knowingly encourage, knowingly support or knowingly influence any person or entity with respect to the voting or disposition of any securities of the CompanyCompany at any annual or special meeting of shareholders with respect to the appointment, election or removal of director(s), except in accordance with Section 1;
(viii) acquire, announce an intention to acquire, offer or deposit any Company Common Shares propose to acquire, or agree to acquire (except by way of stock dividends or other equity distributions or offerings made available to holders of voting securities of the Company) in Company generally on a voting trust or similar arrangement or subject any Company Common Shares (or other equity securities of the Company) to any voting agreement or similar arrangementpro rata basis, or grant any proxy as awarded or granted to Xx. Xxxxxx with respect to any Company Common Shares (or other equity securities of the Company) (other than to his service as a designated representative of the 1 Note to form: bracketed language to be removed if Block Sale Transferee does not accept the board nomination rights. 2 Note to form: bracketed language to be removed if Block Sale Transferee does not accept the board nomination rights. 3 Note to form: bracketed language to be removed if Block Sale Transferee does not accept the board nomination rights. Company pursuant to a proxy statement director of the Company), other than as contemplated directly or indirectly, by the Governance Agreement purchase or the Stockholders Agreement or the transactions contemplated thereby;
(c) seek to callotherwise, or to request the calling of, or call a special meeting of the stockholders any security of the Company, including any option, warrant, convertible security, stock appreciation right or seek to make, or make, a stockholder proposal (whether pursuant to Rule 14a-8 under the Exchange Act or otherwise) at any meeting of the stockholders of the Company, or make a request for a list of the Company’s stockholders, or[, other than pursuant to the Block Sale Transferee’s nomination rights in accordance with Article 5 of this Agreement,]4 seek election of a representative to the Board of Directors, seek to place a representative on the Board of Directors or seek the removal of any director from the Board of Directors, or otherwise acting alone, or by participating in a group, seek to control or influence the governance or policies of the Company;
(d) effect or seek to effect similar right (including, without limitation, by entering into any discussionsput or call option or “swap” transaction) with respect to any security (other than a broad-based market basket or index) that, negotiationsinter alia, agreements includes, relates to or understandings whether derives any significant part of its value from a change in the market price or not legally enforceable with any third Person), offer or propose (whether publicly or otherwise) to effect, or cause or participate in, or in any way assist or facilitate any other Person to effect or seek, offer or propose (whether publicly or otherwise) to effect or participate in any acquisition value of any Company Common Shares (or other equity the securities of the Company) (, which would result in the Xxxxxx Parties beneficially owning 9.9% or Beneficial Ownership thereof) in excess more of the Ownership Limitation, except then-outstanding shares of Common Stock in accordance with Section 2.1; provided, that, for the avoidance of doubt, the Block Sale Transferee is permitted to Transfer to an unaffiliated third party any Company Common Shares (or other equity securities of the Company) Beneficially Owned by the Block Sale Transferee, subject to the provisions of Article 8 hereof, if applicableaggregate;
(eix) effect or seek to effect (includingexcept as expressly provided elsewhere in this Agreement, without limitationgrant any proxy, by entering into any discussions, negotiations, agreements or understandings whether or not legally enforceable with any third Person), offer or propose (whether publicly or otherwise) to effect, or cause or participate in, or in any way assist or facilitate any other Person to effect or seek, offer or propose (whether publicly or otherwise) to effect or participate in (i) any tender offer or exchange offer, merger, acquisition, share exchange consent or other business combination involving the Company or any of its Subsidiaries, (ii) any recapitalization, restructuring, liquidation, dissolution or other extraordinary transaction authority to vote with respect to the Company or any of its Subsidiaries or any material portion of its or their businesses, or (iii) any acquisition of any material assets or businesses of the Company or any of its Subsidiaries;
(f) publicly disclose, or cause or, in a material manner, facilitate the public disclosure (including without limitation through the filing by it of any document or report with the SEC or any other governmental agency or any disclosure to any 4 Note to form: bracketed language to be removed if Block Sale Transferee does not accept the board nomination rights. journalist, member of the media or securities analyst) of any intent, purpose, plan or proposal to obtain any waiver, or consent under, or any amendment of, any of the provisions of Section 2.1, this Section 3.1, or Article 4 (except as described in Section 4.1) or bring any action to (i) contest the validity of Section 2.1, this Section 3.1 or Article 4, or (ii) seek a release from the restrictions contained in Section 2.1, this Section 3.1 or Article 4;
(g) unless required by law, make or issue or cause to be made or issued any public disclosure, announcement or statement (including without limitation the filing of any document or report with the SEC or any other governmental agency or any disclosure to any journalist, member of the media or securities analyst) (i) in support of any solicitation described in paragraph (a) above matter (other than solicitations by to the Company), (ii) named proxies included in support of any matter described in paragraph (c) above, (iii) concerning any potential matter described in paragraph (d) above; (iv) concerning any potential matter described in paragraph (e) above; or (v) negatively commenting upon the Company’s corporate strategy, business, corporate activities, board of directors proxy card for an annual meeting or management (for the avoidance of doubt, making any factual statement about the Company’s corporate strategy, business, corporate activities, board of directors or management shall not be prohibited by this Section 3.1(g)(v)a special meeting); or
(hx) enter into make any discussionsrequest or submit any proposal to amend the terms of this Agreement other than through non-public communications with the Company or the Board that would not be reasonably determined to trigger public disclosure obligations for any Party.
(b) Except as expressly provided in Section 1 or Section 2(a), negotiationsthe Xxxxxx Parties shall be entitled to (i) vote any shares of Common Stock that they beneficially own as the Xxxxxx Parties determine in their sole discretion and (ii) disclose, agreements publicly or understandings with any Person otherwise, how they intend to vote or act with respect to any of the foregoing or advise, assist or seek to persuade others to take any action with respect to any of the foregoing. Notwithstanding the foregoing, (a) [the restrictions in Sections 3.1(d), 3.1(e), 3.1(f), 3.1(g)(iii), 3.1(g)(iv), 3.1(g)(v) and 3.1(h) (to the extent it relates to any of the foregoing) shall not apply at any time that (i) the Company fails to comply in all material respects with its obligations under Article 5 hereof, which failure continues unremedied for a period of 10 business days following receipt by the Company of a written notice from the Block Sale Transferee of such failure or (ii) the Block Sale Transferee has relinquished its nomination rights pursuant to Article 5 and all Block Sale Transferee nominated directors have resigned; or (b)]5 in the event that (x) the Board of Directors determines that the Company should engage in any transaction described in Section 3.1(e)(i) or 3.1(e)(ii), the Block Sale Transferee shall be permitted to participate in such Board of Directors’ approved transaction as a shareholder on the same terms and conditions as any other shareholder securities of the Company, (y) any shareholder proposal or other matter to be voted on by the Board shareholders of Directors determines that the Company should solicit and the reasons therefor.
(c) Notwithstanding anything in Section 2(a) or elsewhere in this Agreement, nothing in this Agreement shall prohibit or restrict the Xxxxxx Parties from one or more Persons or enter into discussions with one or more Persons regarding, or invites any other Person or group to make a proposal (without similarly inviting the Block Sale Transferee to make a similar proposal) with respect to an acquisition of (i) all or substantially all of the equity securities or assets of the Company or any of its Subsidiaries (by merger, tender offer or otherwise) or (ii) any material assets or businesses of the Company or any of its Subsidiaries, the Block Sale Transferee shall have the right to make a non-public competing proposal to communicating privately with the Board of Directors in compliance with any written procedures generally applicable to Persons making proposals provided by the Company 5 Note to form: enumerated restrictions to be removed if the Block Sale Transferee does not accept the board nomination rights. or the Board of Directors or (z) any third party that is not an Affiliate of the Block Sale Transferee makes a bona fide offer or proposal, with respect to a matter described in Section 3.1(d) or 3.1(e) above (a “Third Party Proposal”), the Block Sale Transferee (A) shall have the right to make a non-public competing proposal to the Board of Directors and may publicly announce that it has made a competing proposal to the Board of Directors so long as such public announcement does not constitute an offer or a solicitation to any recipient thereof and (B) may tender, exchange or otherwise sell or transfer its Company Common Shares (or other equity securities of the Company) to such third party in accordance with the Third Party Proposal; provided, however, that in the case of clauses (y) and (z), the Block Sale Transferee shall be prohibited from participating with, joining in a group with or providing financing to any such third party). [For the avoidance of doubt, any discussions involving the directors nominated by the Block Sale Transferee pursuant to Article 5 hereof (i) at a meeting of the Board of Directors or (ii) with management of the Company, other members of the Board of Directors or any of the Company’s advisors or representativesofficers regarding any matter, in the case so long as such communications are not intended to, and would not reasonably be expected to, require any public disclosure of clauses (i) and such communications, (ii), while acting in such directors’ capacity as members ) communicating with shareholders of the Board of DirectorsCompany and others in a manner that does not otherwise violate Section 2(a) or Section 12, or (iii) taking any action necessary to comply with any law, rule or regulation or any action required by any governmental or regulatory authority or stock exchange that has jurisdiction over the Xxxxxx Parties.
(d) Nothing in Section 2 or elsewhere in this Agreement shall not be deemed to violate limit the exercise in good faith by any New Director (or a Replacement Director) or existing director of such person’s fiduciary duties solely in such person’s capacity as a director of the provisions of this Article 3.]6Company.
Appears in 2 contracts
Samples: Cooperation Agreement (Radoff Bradley Louis), Cooperation Agreement (Enzo Biochem Inc)
Standstill Provisions. During (a) Dolphin agrees that, from the date of this Agreement until the date that is ten (10) business days prior to the deadline for the submission of shareholder nominations for the 2014 Annual Meeting pursuant to the Company’s bylaws (the “Standstill Period”), unless expressly authorized in writing to do so by a majority neither Dolphin, nor any of its Affiliates or Associates under its control or direction, nor any of the members of the Board of Directors, acting through a committee of directors Affiliates or Associates that qualify as “independent directors” as defined by applicable stock exchange listing rules [(which term, for this purpose, will exclude any directors nominated by the Block Sale Transferee)]1, the Block Sale Transferee shall notcontrol or direct Dolphin will, and shall Dolphin will cause its each of such Affiliates and Associates not to, directly or indirectly, acting alone or as part of a groupin any manner:
(ai) makebecome the beneficial owner, as such term is defined in Rule 13d-3 of the Exchange Act, of more than 9.90% of the Common Stock;
(ii) engage in any solicitation of proxies or consents or become a “participant” in a “solicitation” as such terms are defined in Regulation 14A under the Exchange Act of proxies or consents (including, without limitation, any solicitation of consents that seeks to call a special meeting of shareholders of the Company), in each case, with respect to the Common Stock, other than in accordance with Section 1 of this Agreement; provided that nothing in this subsection shall prohibit Dolphin from taking any action during the Standstill Period in support of the Dolphin Director (including engaging in a solicitation of proxies for the election of the Dolphin Director) in connection with any special meeting of the Company’s shareholders called by a person or persons other than Dolphin for the purpose of removing or electing directors of the Company;
(iii) form, join or in any way participate in any solicitation “group” (within the meaning of any proxy [(but without regard to the exclusion set forth in Rule 14a-1(l)(2)(ivSection 13(d)(3) under of the Exchange Act from the definition of “solicitation”)]2 to vote any Company Common Shares (or other equity securities of the Company) with respect to any matter (including, without limitation, any contested solicitation for the election of directors with respect to the Company), other than solicitations or acting as a participant in support of all of the Company’s nominees [including, without limitation, the nominees of the Block Sale Transferee pursuant to Article 5]3;
(b) form, join in or in any way participate in a group (for the avoidance of doubt, the Block Sale Transferee shall not be deemed to have formed, joined in or in any way participated in a group with the Company as a result of the Block Sale Transferee’s execution of this AgreementAct) with respect to the Company Common Shares Stock (other than a “group” that includes all or other equity securities some of the Companypersons identified on Exhibit A and the Board Observer, but does not include any other entities or persons not identified on Exhibit A as of the date hereof); provided, however, that nothing herein shall limit the ability of an Affiliate of Dolphin to join the “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;
(iv) or deposit any Company Common Shares (or other equity securities of the Company) Stock in a any voting trust or similar subject any Common Stock to any arrangement or subject any Company Common Shares (or other equity securities of the Company) to any voting agreement or similar arrangement, or grant any proxy with respect to the voting of any Company Common Shares Stock, other than any such voting trust, arrangement or agreement in accordance with this Agreement;
(or other equity securities of v) (A) seek representation on the Company) Board (other than to a designated representative of the 1 Note to form: bracketed language to be removed if Block Sale Transferee does not accept the board nomination rights. 2 Note to form: bracketed language to be removed if Block Sale Transferee does not accept the board nomination rights. 3 Note to form: bracketed language to be removed if Block Sale Transferee does not accept the board nomination rights. Company pursuant to a proxy statement of the Company), other than as contemplated by the Governance Agreement or the Stockholders Agreement or the transactions contemplated thereby;
(c) seek to call, or to request the calling of, or call a special meeting of the stockholders of the Company, or seek to make, or make, a stockholder proposal (whether pursuant to Rule 14a-8 under the Exchange Act or otherwise) at any meeting of the stockholders of the Company, or make a request for a list of the Company’s stockholders, or[, other than pursuant to the Block Sale Transferee’s nomination rights in accordance with Article 5 Section 1 of this Agreement,]4 seek election Agreement) or submit nominations in furtherance of a representative “contested solicitation” for the election or removal of directors of the Company or take any other action with respect to the Board of Directors, seek to place a representative on the Board of Directors election or seek the removal of any director from the Board directors (other than in accordance with Section 1 of Directorsthis Agreement), or (B) otherwise acting alone, or by participating in a group, seek to control or influence the governance management, Board or policies of the Company, other than the Dolphin Director in his capacity as such, or (C) instigate, support, encourage or assist any third party to do any of the actions set forth in clause (A) or (B) above; provided that nothing in this subsection shall prohibit Dolphin from taking any action during the Standstill Period in support of the Dolphin Director (including engaging in a solicitation of proxies for the election of the Dolphin Director) in connection with any special meeting of the Company’s shareholders called by a person or persons other than Dolphin for the purpose of removing or electing directors of the Company;
(dA) effect make any proposal for consideration by shareholders at any annual or seek special meeting of shareholders of the Company, or (B) other than at the direction or with the consent of the Board, in the Dolphin Director’s capacity as a director of the Company, or with respect to effect (includingpurchases of Common Stock expressly permitted by Section 2(a)(i), without limitationoffer, by entering into propose, or make any discussionspublic statement with respect to, negotiationsor encourage, agreements solicit or understandings whether or not legally enforceable negotiate with any third Person)party with respect to, offer or propose (whether publicly or otherwise) to effecta merger, or cause or participate inconsolidation, or in any way assist or facilitate any other Person to effect or seek, offer or propose (whether publicly or otherwise) to effect or participate in any acquisition of any Company Common Shares (control or other equity business combination, tender or exchange offer, purchase, sale or transfer of assets or securities, dissolution, liquidation, reorganization, change in capital structure, recapitalization, dividend or similar transaction involving the Company;
(vii) seek to advise, encourage, support or influence any person with respect to the voting or disposition of any securities of the Company) (Company at any annual or Beneficial Ownership thereof) in excess special meeting of the Ownership Limitationshareholders, except in accordance with Section 2.11; provided, that, provided that nothing in this subsection shall prohibit Dolphin from taking any action during the Standstill Period in support of the Dolphin Director (including engaging in a solicitation of proxies for the avoidance election of doubt, the Block Sale Transferee is permitted to Transfer to an unaffiliated third party Dolphin Director) in connection with any Company Common Shares (or other equity securities special meeting of the Company) Beneficially Owned ’s shareholders called by a person or persons other than Dolphin for the Block Sale Transferee, subject to the provisions purpose of Article 8 hereof, if applicable;
(e) effect removing or seek to effect (including, without limitation, by entering into any discussions, negotiations, agreements or understandings whether or not legally enforceable with any third Person), offer or propose (whether publicly or otherwise) to effect, or cause or participate in, or in any way assist or facilitate any other Person to effect or seek, offer or propose (whether publicly or otherwise) to effect or participate in (i) any tender offer or exchange offer, merger, acquisition, share exchange or other business combination involving the Company or any of its Subsidiaries, (ii) any recapitalization, restructuring, liquidation, dissolution or other extraordinary transaction with respect to the Company or any of its Subsidiaries or any material portion of its or their businesses, or (iii) any acquisition of any material assets or businesses electing directors of the Company or any of its Subsidiaries;
(f) publicly disclose, or cause or, in a material manner, facilitate the public disclosure (including without limitation through the filing by it of any document or report with the SEC or any other governmental agency or any disclosure to any 4 Note to form: bracketed language to be removed if Block Sale Transferee does not accept the board nomination rights. journalist, member of the media or securities analyst) of any intent, purpose, plan or proposal to obtain any waiver, or consent under, or any amendment of, any of the provisions of Section 2.1, this Section 3.1, or Article 4 (except as described in Section 4.1) or bring any action to (i) contest the validity of Section 2.1, this Section 3.1 or Article 4, or (ii) seek a release from the restrictions contained in Section 2.1, this Section 3.1 or Article 4;
(g) unless required by law, make or issue or cause to be made or issued any public disclosure, announcement or statement (including without limitation the filing of any document or report with the SEC or any other governmental agency or any disclosure to any journalist, member of the media or securities analyst) (i) in support of any solicitation described in paragraph (a) above (other than solicitations by the Company), (ii) in support of any matter described in paragraph (c) above, (iii) concerning any potential matter described in paragraph (d) above; (iv) concerning any potential matter described in paragraph (e) above; or (v) negatively commenting upon the Company’s corporate strategy, business, corporate activities, board of directors or management (for the avoidance of doubt, making any factual statement about the Company’s corporate strategy, business, corporate activities, board of directors or management shall not be prohibited by this Section 3.1(g)(v)); or
(hviii) enter into make any discussionsrequest or submit any proposal to waive, negotiations, agreements terminate or understandings with any Person with respect to any amend the terms of the foregoing or advise, assist or seek to persuade others to take any action with respect to any of the foregoing. Notwithstanding the foregoing, (a) [the restrictions in Sections 3.1(d), 3.1(e), 3.1(f), 3.1(g)(iii), 3.1(g)(iv), 3.1(g)(v) and 3.1(h) (to the extent it relates to any of the foregoing) shall not apply at any time that (i) the Company fails to comply in all material respects with its obligations under Article 5 hereof, which failure continues unremedied for a period of 10 business days following receipt by the Company of a written notice from the Block Sale Transferee of such failure or (ii) the Block Sale Transferee has relinquished its nomination rights pursuant to Article 5 and all Block Sale Transferee nominated directors have resigned; or (b)]5 in the event that (x) the Board of Directors determines that the Company should engage in any transaction described in Section 3.1(e)(i) or 3.1(e)(ii), the Block Sale Transferee shall be permitted to participate in such Board of Directors’ approved transaction as a shareholder on the same terms and conditions as any this Agreement other shareholder of the Company, (y) the Board of Directors determines that the Company should solicit from one or more Persons or enter into discussions with one or more Persons regarding, or invites any other Person or group to make a proposal (without similarly inviting the Block Sale Transferee to make a similar proposal) with respect to an acquisition of (i) all or substantially all of the equity securities or assets of the Company or any of its Subsidiaries (by merger, tender offer or otherwise) or (ii) any material assets or businesses of the Company or any of its Subsidiaries, the Block Sale Transferee shall have the right to make a than through non-public competing proposal to the Board of Directors in compliance communications with any written procedures generally applicable to Persons making proposals provided by the Company 5 Note to form: enumerated restrictions to be removed if the Block Sale Transferee does not accept the board nomination rights. or the Board of Directors or (z) any third party that is not an Affiliate of the Block Sale Transferee makes a bona fide offer or proposal, with respect to a matter described in Section 3.1(d) or 3.1(e) above (a “Third Party Proposal”), the Block Sale Transferee (A) shall have the right to make a non-public competing proposal to the Board of Directors and may publicly announce that it has made a competing proposal to the Board of Directors so long as such public announcement does not constitute an offer or a solicitation to any recipient thereof and (B) may tender, exchange or otherwise sell or transfer its Company Common Shares (or other equity securities of the Company) to such third party in accordance with the Third Party Proposal; provided, however, that in the case of clauses (y) and (z), the Block Sale Transferee shall be prohibited from participating with, joining in a group with or providing financing to any such third party). [For the avoidance of doubt, any discussions involving the directors nominated by the Block Sale Transferee pursuant to Article 5 hereof (i) at a meeting of the Board of Directors or (ii) with management of the Company, other members of the Board of Directors or any of the Company’s advisors or representatives, in the case of clauses (i) and (ii), while acting in such directors’ capacity as members of the Board of Directors, shall would not be deemed reasonably determined to violate trigger public disclosure obligations for any of the provisions of this Article 3.]6Party.
Appears in 2 contracts
Samples: Board Representation Agreement (Rimage Corp), Board Representation Agreement (Dolphin Limited Partnership Iii, L.P.)
Standstill Provisions. (i) During the period commencing on the date hereof and ending on the fifth anniversary of the Initial Closing (the "Standstill Period, unless expressly authorized in writing to do so by a majority ") the Investor will not and will not permit any of the members of the Board of Directors, acting through a committee of directors that qualify as “independent directors” as defined by applicable stock exchange listing rules [(which term, for this purpose, will exclude any directors nominated by the Block Sale Transferee)]1, the Block Sale Transferee shall not, and shall cause its Affiliates not to, alone or in concert with others directly or indirectly, acting alone or except as part of a groupspecifically permitted by this Agreement:
(aA) by purchase or otherwise, acquire, or agree to acquire, Beneficial Ownership of any shares of Common Stock or direct or indirect rights or options to acquire such Beneficial Ownership (i) other than Voting Securities (A) acquired by the Investor pursuant to Section 2.1 (including any Supplemental Shares) or Section 2.2 or (B) which the Investor has the right to purchase in Future Financings pursuant to the provisions of Section 2.3 from and after the Initial Closing Date (the amount of shares to which the Investor is so limited is hereinafter referred to as the "Standstill Percentage") or (ii) other than Voting Securities in an amount that, together with Voting Securities Beneficially Owned by any affiliate of Investor (as defined in Rule 12b-2 under the Exchange Act, such term to have such meaning for purposes of this Section 4.2(b) only) from and after the Revised Standstill Date pursuant to Section 4.2(b)(ii) that does not exceed the Revised Standstill Percentage; provided, however, that the foregoing subsections (i) and (ii) shall not prohibit Beneficial Ownership of shares of Common Stock issued as dividends or as a result of stock splits and similar reclassifications of any Shares under this Agreement or issued pursuant to the antidilution provisions of Section 2.4;
(B) make, or in any way participate in, any "solicitation" of "proxies" (as such terms are defined or used in any solicitation of any proxy [(but without regard to the exclusion set forth in Rule 14a-1(l)(2)(iv) Regulation 14A under the Exchange Act from Act) or become a participant in any election contest (as such terms are defined or used in Rule 14a-11 under the definition of “solicitation”)]2 Exchange Act) to vote vote, or seek to advise or influence any Company Common Shares (or other equity securities of the Company) with respect to any matter (including, without limitation, any contested solicitation for the election of directors Person with respect to the Company)voting of, other than solicitations or acting as a participant in support any shares of all Common Stock of the Company’s nominees [including, without limitation, the nominees of the Block Sale Transferee pursuant to Article 5]3;
(bC) form, join in or in any way participate in a group "group" (for the avoidance of doubt, the Block Sale Transferee shall not be deemed to have formed, joined as such term is used in or in any way participated in a group with the Company as a result Section 13(d)(3) of the Block Sale Transferee’s execution of this AgreementExchange Act) with respect to the any Company Common Shares (or other equity securities of the Company) or Securities, deposit any Company Common Shares (Securities Beneficially Owned by the Investor or its Affiliates in a voting trust or subject any Company Securities to any arrangement or agreement with respect to the voting thereof, other equity securities of the Company) in than a voting trust or similar arrangement or subject any Company Common Shares (or other equity securities of to which only the Company) to any voting agreement or similar arrangement, or grant any proxy with respect to any Company Common Shares (or other equity securities of the Company) (other than to a designated representative of the 1 Note to form: bracketed language to be removed if Block Sale Transferee does not accept the board nomination rights. 2 Note to form: bracketed language to be removed if Block Sale Transferee does not accept the board nomination rights. 3 Note to form: bracketed language to be removed if Block Sale Transferee does not accept the board nomination rights. Company pursuant to a proxy statement of the Company), other than as contemplated by the Governance Agreement Investor or the Stockholders Agreement or the transactions contemplated therebyAffiliates are parties;
(c) seek to call, or to request the calling of, or call a special meeting of the stockholders of the Company, or seek to make, or make, a stockholder proposal (whether pursuant to Rule 14a-8 under the Exchange Act or otherwise) at any meeting of the stockholders of the Company, or make a request for a list of the Company’s stockholders, or[, other than pursuant to the Block Sale Transferee’s nomination rights in accordance with Article 5 of this Agreement,]4 seek election of a representative to the Board of Directors, seek to place a representative on the Board of Directors or seek the removal of any director from the Board of Directors, or otherwise acting alone, or by participating in a group, seek to control or influence the governance or policies of the Company;
(d) effect or seek to effect (including, without limitation, by entering into any discussions, negotiations, agreements or understandings whether or not legally enforceable with any third Person), offer or propose (whether publicly or otherwise) to effect, or cause or participate in, or in any way assist or facilitate any other Person to effect or seek, offer or propose (whether publicly or otherwise) to effect or participate in any acquisition of any Company Common Shares (or other equity securities of the Company) (or Beneficial Ownership thereof) in excess of the Ownership Limitation, except in accordance with Section 2.1; provided, that, for the avoidance of doubt, the Block Sale Transferee is permitted to Transfer to an unaffiliated third party any Company Common Shares (or other equity securities of the Company) Beneficially Owned by the Block Sale Transferee, subject to the provisions of Article 8 hereof, if applicable;
(e) effect or seek to effect (including, without limitation, by entering into any discussions, negotiations, agreements or understandings whether or not legally enforceable with any third Person), offer or propose (whether publicly or otherwise) to effect, or cause or participate in, or in any way assist or facilitate any other Person to effect or seek, offer or propose (whether publicly or otherwise) to effect or participate in (i) any tender offer or exchange offer, merger, acquisition, share exchange or other business combination involving the Company or any of its Subsidiaries, (ii) any recapitalization, restructuring, liquidation, dissolution or other extraordinary transaction with respect to the Company or any of its Subsidiaries or any material portion of its or their businesses, or (iii) any acquisition of any material assets or businesses of the Company or any of its Subsidiaries;
(f) publicly disclose, or cause or, in a material manner, facilitate the public disclosure (including without limitation through the filing by it of any document or report with the SEC or any other governmental agency or any disclosure to any 4 Note to form: bracketed language to be removed if Block Sale Transferee does not accept the board nomination rights. journalist, member of the media or securities analyst) of any intent, purpose, plan or proposal to obtain any waiver, or consent under, or any amendment of, any of the provisions of Section 2.1, this Section 3.1, or Article 4 (except as described in Section 4.1) or bring any action to (i) contest the validity of Section 2.1, this Section 3.1 or Article 4, or (ii) seek a release from the restrictions contained in Section 2.1, this Section 3.1 or Article 4;
(g) unless required by law, make or issue or cause to be made or issued any public disclosure, announcement or statement (including without limitation the filing of any document or report with the SEC or any other governmental agency or any disclosure to any journalist, member of the media or securities analyst) (i) in support of any solicitation described in paragraph (a) above (other than solicitations by the Company), (ii) in support of any matter described in paragraph (c) above, (iii) concerning any potential matter described in paragraph (d) above; (iv) concerning any potential matter described in paragraph (e) above; or (v) negatively commenting upon the Company’s corporate strategy, business, corporate activities, board of directors or management (for the avoidance of doubt, making any factual statement about the Company’s corporate strategy, business, corporate activities, board of directors or management shall not be prohibited by this Section 3.1(g)(v)); or
(hD) enter into any discussions, negotiations, agreements arrangements or understandings with any Person third party with respect to any of the foregoing restrictions in this Section 4.2(b)(i);
(E) disclose to any Person or advisein any filing under the Exchange Act any intention, assist plan or arrangement inconsistent with this Section 4.2(b) or with the restrictions on transfer set forth in Section 4.2(d); or
(F) act, alone or in concert with others, to seek to persuade others to take control or influence in any action with material respect to any the management or policies of the foregoing. Notwithstanding Company (beyond the foregoing, (a) [actions of the restrictions in Sections 3.1(d), 3.1(e), 3.1(f), 3.1(g)(iii), 3.1(g)(iv), 3.1(g)(v) and 3.1(h) (Investor's nominee to the extent it relates to any board of directors of the foregoingCompany pursuant to Section 4.1(c)).
(ii) shall not apply at any time that From and after the earlier of (i) the Fourth Investment Closing Date or (ii) the second anniversary of the Initial Closing Date (the "Revised Standstill Date"), the Investor shall have the right to acquire additional shares of Common Stock through open market purchases or other purchases from other Persons in order to obtain Beneficial Ownership of up to nineteen and nine-tenths percent (19.9%) of the Common Stock (the "Revised Standstill Percentage") outstanding from time to time after the Revised Standstill Date upon compliance with the following:
(A) The Investor shall first deliver a written notice of the intention to purchase shares of Common Stock to the Company fails which shall specify the number of shares of Common Stock (the "Specified Shares") the Investor intends to comply in all material respects with its obligations under Article 5 hereofpurchase (the "Purchase Offer").
(B) If the Company desires to sell the Specified Shares to the Investor, which failure continues unremedied for a period of 10 then the Company must give written notice (the "Purchase Acceptance") to the Investor within fifteen (15) business days following after receipt of such Purchase Offer (the "Acceptance Period") stating its intention to sell such Specified Shares to the Investor at the Specified Share Price.
(C) If the Company delivers the Purchase Acceptance to the Investor, the Company and the Investor shall each use their respective Best Efforts to secure any approvals of any Governmental Authority required in connection therewith and shall be legally obligated to consummate the purchase and sale contemplated hereby. The Closing shall take place three (3) business days after such approvals are obtained (or three (3) business days after the Purchase Acceptance if such approvals are not required). At the closing, the Investor shall purchase the Specified Shares from the Company at a price equal to the average Quoted Price for all trading days within the twenty (20) days ending two days prior to the receipt by the Company of a written notice from the Block Sale Transferee of such failure or Purchase Offer (iithe "Specified Share Price") and the Block Sale Transferee has relinquished its nomination rights pursuant Company shall issue the Specified Shares to Article 5 and all Block Sale Transferee nominated directors have resigned; or the Investor.
(b)]5 in D) In the event that the Company does not exercise its right to accept the Purchase Offer within the Acceptance Period, the Investor shall be free, for a period of sixty (x60) calendar days following the Board expiration of Directors determines the Acceptance Period, to purchase the Specified Shares in the open market or from third parties, such purchases to be made at market prices then prevailing or as otherwise agreed by the Investor. To the extent that the Company should engage in Investor does not purchase any transaction described in Section 3.1(e)(iportion of the Specified Shares by the end of such sixty (60) or 3.1(e)(ii)day period, the Block Sale Transferee Investor may not purchase any additional shares of Common Stock thereafter (except as otherwise provided under Sections 2.3(a) and 2.3(b)) without delivering a new Purchase Offer to the Company pursuant to this Section 4.2(b)(ii).
(E) The Investor's rights and obligations under this Section 4.2(b)(ii) shall be permitted to participate in such Board of Directors’ approved transaction as a shareholder on expire upon the same terms and conditions as any other shareholder expiration of the Company, Standstill Period.
(yiii) the Board of Directors determines that the Company should solicit from one or more Persons or enter into discussions with one or more Persons regarding, or invites any other Person or group to make a proposal (without similarly inviting the Block Sale Transferee to make a similar proposal) with respect to an acquisition of (i) all or substantially all of the equity securities or assets of the Company or any of its Subsidiaries (by merger, tender offer or otherwise) or (ii) any material assets or businesses of the Company or any of its Subsidiaries, the Block Sale Transferee shall have the right to make a non-public competing proposal to the Board of Directors in compliance with any written procedures generally applicable to Persons making proposals provided by the Company 5 Note to form: enumerated restrictions to be removed if the Block Sale Transferee does not accept the board nomination rights. or the Board of Directors or (z) any third party that is not an Affiliate of the Block Sale Transferee makes a bona fide offer or proposal, with respect to a matter described in Section 3.1(d) or 3.1(e) above (a “Third Party Proposal”), the Block Sale Transferee (A) shall have the right to make a non-public competing proposal to the Board of Directors and may publicly announce that it has made a competing proposal to the Board of Directors so long as such public announcement does not constitute an offer or a solicitation to any recipient thereof and (B) may tender, exchange or otherwise sell or transfer its Company Common Shares (or other equity securities of the Company) to such third party in accordance with the Third Party Proposal; provided, however, that in the case of clauses (y) and (z), the Block Sale Transferee shall be prohibited from participating with, joining in a group with or providing financing to any such third party). [For the avoidance of doubt, any discussions involving if the directors nominated by Investor's aggregate percentage Beneficial Ownership interest in the Block Sale Transferee pursuant to Article 5 hereof (i) at Company is increased beyond the Standstill Percentage or the Revised Standstill Percentage, as applicable, as a meeting result of the Board of Directors or (ii) with management a recapitalization of the Company, other members a repurchase of securities by the Board of Directors Company or any of other action taken by the Company’s advisors Company or representativesits Affiliates, in the case of clauses (i) and (ii), while acting in such directors’ capacity as members of the Board of Directors, increase shall not be deemed to violate any of the provisions of this Article 3.]6Section 4.2(b).
Appears in 1 contract
Samples: Investment and Master Strategic Relationship Agreement (Angeion Corp/Mn)
Standstill Provisions. During (a) Starboard agrees that, from the date of this Agreement until the earlier of (x) the date that is 15 business days prior to the deadline for the submission of stockholder nominations for the Company’s 2023 Annual Meeting of Stockholders (the “2023 Annual Meeting”) pursuant to the By-Laws, or (y) the date that is 100 days prior to the first anniversary of the 2022 Annual Meeting (the “Standstill Period”), unless expressly authorized in writing to do so by a majority of the members of the Board of Directors, acting through a committee of directors that qualify as “independent directors” as defined by applicable stock exchange listing rules [(which term, for this purpose, will exclude any directors nominated by the Block Sale Transferee)]1, the Block Sale Transferee Starboard shall not, and shall cause each of its controlled Affiliates and Associates not to, in each case directly or indirectly, acting alone or as part of a groupin any manner:
(ai) makeengage in any solicitation or become a “participant” in a “solicitation” (as such terms are defined in Regulation 14A under the Exchange Act) of proxies or consents (including any solicitation of consents that seeks to call a special meeting of stockholders of the Company), in each case with respect to any securities of the Company;
(ii) form, join, or in any way participate in any solicitation “group” (within the meaning of any proxy [(but without regard to the exclusion set forth in Rule 14a-1(l)(2)(ivSection 13(d)(3) under of the Exchange Act from the definition of “solicitation”)]2 to vote any Company Common Shares (or other equity securities of the CompanyAct) with respect to shares of Common Stock (other than a “group” that includes all or some of the members of Starboard, but does not include any matter other entities or persons that are not members of Starboard as of the date hereof); provided, however, that nothing herein shall limit the ability of an Affiliate of Starboard to join the “group” following the execution of this Agreement so long as any such Affiliate agrees in writing to be bound by the terms and conditions of this Agreement;
(includingiii) deposit any shares of Common Stock in any voting trust or subject any shares of Common Stock to any arrangement or agreement with respect to the voting of any shares of Common Stock, without limitationother than any such voting trust, arrangement or agreement solely among the members of Starboard and otherwise in accordance with this Agreement;
(iv) seek or submit, or encourage any person or entity to seek or submit, nomination(s) in furtherance of a “contested solicitation solicitation” for the appointment, election or removal of directors with respect to the Company)Company or seek, or knowingly encourage or take any other than solicitations action with respect to the appointment, election or acting removal of any directors; provided, however, that nothing in this Agreement shall prevent Starboard or its Affiliates or Associates from taking actions in furtherance of identifying director candidates in connection with the 2023 Annual Meeting so long as such actions do not create a participant in support of all of public disclosure obligation for Starboard or the Company, are not publicly disclosed by Starboard or its representatives, Affiliates or Associates, and are undertaken on a basis reasonably designed to be confidential and in accordance in all material respects with Starboard’s nominees [including, without limitation, normal practices in the nominees of the Block Sale Transferee pursuant to Article 5]3circumstances;
(bA) formmake any proposal for consideration by stockholders at a Stockholder Meeting, join in (B) make any offer or in any way participate in a group proposal (for the avoidance of doubt, the Block Sale Transferee shall not be deemed to have formed, joined in with or in any way participated in a group with the Company as a result of the Block Sale Transferee’s execution of this Agreementwithout conditions) with respect to the Company Common Shares any merger, takeover offer, tender (or other equity securities of the Companyexchange) or deposit any Company Common Shares (or other equity securities of the Company) in a voting trust or similar arrangement or subject any Company Common Shares (or other equity securities of the Company) to any voting agreement or similar arrangement, or grant any proxy with respect to any Company Common Shares (or other equity securities of the Company) (other than to a designated representative of the 1 Note to form: bracketed language to be removed if Block Sale Transferee does not accept the board nomination rights. 2 Note to form: bracketed language to be removed if Block Sale Transferee does not accept the board nomination rights. 3 Note to form: bracketed language to be removed if Block Sale Transferee does not accept the board nomination rights. Company pursuant to a proxy statement of the Company), other than as contemplated by the Governance Agreement or the Stockholders Agreement or the transactions contemplated thereby;
(c) seek to call, or to request the calling of, or call a special meeting of the stockholders of the Company, or seek to make, or make, a stockholder proposal (whether pursuant to Rule 14a-8 under the Exchange Act or otherwise) at any meeting of the stockholders of the Company, or make a request for a list of the Company’s stockholders, or[, other than pursuant to the Block Sale Transferee’s nomination rights in accordance with Article 5 of this Agreement,]4 seek election of a representative to the Board of Directors, seek to place a representative on the Board of Directors or seek the removal of any director from the Board of Directors, or otherwise acting alone, or by participating in a group, seek to control or influence the governance or policies of the Company;
(d) effect or seek to effect (including, without limitation, by entering into any discussions, negotiations, agreements or understandings whether or not legally enforceable with any third Person), offer or propose (whether publicly or otherwise) to effect, or cause or participate in, or in any way assist or facilitate any other Person to effect or seek, offer or propose (whether publicly or otherwise) to effect or participate in any acquisition of any Company Common Shares (or other equity securities of the Company) (or Beneficial Ownership thereof) in excess of the Ownership Limitation, except in accordance with Section 2.1; provided, that, for the avoidance of doubt, the Block Sale Transferee is permitted to Transfer to an unaffiliated third party any Company Common Shares (or other equity securities of the Company) Beneficially Owned by the Block Sale Transferee, subject to the provisions of Article 8 hereof, if applicable;
(e) effect or seek to effect (including, without limitation, by entering into any discussions, negotiations, agreements or understandings whether or not legally enforceable with any third Person), offer or propose (whether publicly or otherwise) to effect, or cause or participate in, or in any way assist or facilitate any other Person to effect or seek, offer or propose (whether publicly or otherwise) to effect or participate in (i) any tender offer or exchange offer, merger, acquisition, share exchange recapitalization, restructuring, disposition or other business combination involving the Company or any of its Subsidiariessubsidiaries, (iiC) solicit a third party to make an offer or proposal (with or without conditions) with respect to any merger, takeover offer, tender (or exchange) offer, acquisition, recapitalization, restructuring, liquidation, dissolution disposition or other extraordinary transaction with respect to business combination involving the Company or any of its Subsidiaries or any material portion of its or their businessessubsidiaries, or publicly encourage, initiate or support any third party in making such an offer or proposal, (iiiD) publicly comment on any acquisition of third party proposal regarding any material assets merger, takeover offer, tender (or businesses of exchange) offer, acquisition, recapitalization, restructuring, disposition, or other business combination involving the Company or any of its Subsidiariessubsidiaries by such third party (provided that this clause (D) shall not prevent such public comment after such proposal has become generally known to the public other than as a result of a disclosure by Starboard) or (E) call or seek to call a special meeting of stockholders, or initiate or participate in any stockholder action by written consent;
(fvi) publicly discloseseek, alone or cause in concert with others, representation on the Board, except as specifically provided in Section 1;
(vii) advise, encourage, support or influence any person or entity with respect to the voting or disposition of any securities of the Company at any Stockholder Meeting, except as specifically provided in Section 1; or, in a material manner, facilitate
(viii) make any request or submit any proposal to amend the terms of this Agreement other than through non-public communications with the Company or the Board that would not be reasonably determined to trigger public disclosure obligations for any Party.
(including without limitation through the filing by it of any document or report with the SEC or any other governmental agency or any disclosure to any 4 Note to form: bracketed language to be removed if Block Sale Transferee does not accept the board nomination rights. journalist, member of the media or securities analystb) of any intent, purpose, plan or proposal to obtain any waiver, or consent under, or any amendment of, any of the provisions of Section 2.1, this Section 3.1, or Article 4 (except Except as described expressly provided in Section 4.1) 1 or bring any action Section 2(a), Starboard shall be entitled to (i) contest vote the validity shares of Section 2.1, this Section 3.1 or Article 4, or Common Stock that it beneficially owns as it determines in its sole discretion and (ii) seek a release from the restrictions contained in Section 2.1disclose, this Section 3.1 publicly or Article 4;
(g) unless required by lawotherwise, make how it intends to vote or issue or cause to be made or issued any public disclosure, announcement or statement (including without limitation the filing of any document or report with the SEC or any other governmental agency or any disclosure to any journalist, member of the media or securities analyst) (i) in support of any solicitation described in paragraph (a) above (other than solicitations by the Company), (ii) in support of any matter described in paragraph (c) above, (iii) concerning any potential matter described in paragraph (d) above; (iv) concerning any potential matter described in paragraph (e) above; or (v) negatively commenting upon the Company’s corporate strategy, business, corporate activities, board of directors or management (for the avoidance of doubt, making any factual statement about the Company’s corporate strategy, business, corporate activities, board of directors or management shall not be prohibited by this Section 3.1(g)(v)); or
(h) enter into any discussions, negotiations, agreements or understandings with any Person act with respect to any of the foregoing or advise, assist or seek to persuade others to take any action with respect to any of the foregoing. Notwithstanding the foregoing, (a) [the restrictions in Sections 3.1(d), 3.1(e), 3.1(f), 3.1(g)(iii), 3.1(g)(iv), 3.1(g)(v) and 3.1(h) (to the extent it relates to any of the foregoing) shall not apply at any time that (i) the Company fails to comply in all material respects with its obligations under Article 5 hereof, which failure continues unremedied for a period of 10 business days following receipt by the Company of a written notice from the Block Sale Transferee of such failure or (ii) the Block Sale Transferee has relinquished its nomination rights pursuant to Article 5 and all Block Sale Transferee nominated directors have resigned; or (b)]5 in the event that (x) the Board of Directors determines that the Company should engage in any transaction described in Section 3.1(e)(i) or 3.1(e)(ii), the Block Sale Transferee shall be permitted to participate in such Board of Directors’ approved transaction as a shareholder on the same terms and conditions as any other shareholder securities of the Company, (y) any stockholder proposal or other matter to be voted on by the Board of Directors determines that the Company should solicit from one or more Persons or enter into discussions with one or more Persons regarding, or invites any other Person or group to make a proposal (without similarly inviting the Block Sale Transferee to make a similar proposal) with respect to an acquisition of (i) all or substantially all of the equity securities or assets stockholders of the Company and the reasons therefor (in each case, subject to Section 1(c)(v) and Section 12).
(c) Nothing in Section 2(a) shall be deemed to limit the exercise in good faith by the Starboard Director (or any Replacement Director) of its Subsidiaries (by merger, tender offer or otherwise) or (ii) any material assets or businesses of the Company or any of its Subsidiaries, the Block Sale Transferee shall have the right to make such person’s fiduciary duties solely in such person’s capacity as a non-public competing proposal to the Board of Directors in compliance with any written procedures generally applicable to Persons making proposals provided by the Company 5 Note to form: enumerated restrictions to be removed if the Block Sale Transferee does not accept the board nomination rights. or the Board of Directors or (z) any third party that is not an Affiliate of the Block Sale Transferee makes a bona fide offer or proposal, with respect to a matter described in Section 3.1(d) or 3.1(e) above (a “Third Party Proposal”), the Block Sale Transferee (A) shall have the right to make a non-public competing proposal to the Board of Directors and may publicly announce that it has made a competing proposal to the Board of Directors so long as such public announcement does not constitute an offer or a solicitation to any recipient thereof and (B) may tender, exchange or otherwise sell or transfer its Company Common Shares (or other equity securities director of the Company) to such third party in accordance with the Third Party Proposal; provided, however, that in the case of clauses (y) and (z), the Block Sale Transferee shall be prohibited from participating with, joining in a group with or providing financing to any such third party). [For the avoidance of doubt, any discussions involving the directors nominated by the Block Sale Transferee pursuant to Article 5 hereof (i) at a meeting of the Board of Directors or (ii) with management of the Company, other members of the Board of Directors or any of the Company’s advisors or representatives, in the case of clauses (i) and (ii), while acting in such directors’ capacity as members of the Board of Directors, shall not be deemed to violate any of the provisions of this Article 3.]6.
Appears in 1 contract
Samples: Agreement (Liveperson Inc)
Standstill Provisions. During (a) Prior to the Standstill PeriodTermination Date (as defined below), unless expressly authorized except as otherwise provided in writing to do so by a majority this Agreement, without the prior written consent of the members of the Board of Directors, acting through a committee of directors that qualify as “independent directors” as defined by applicable stock exchange listing rules [(which term, for this purpose, will exclude any directors nominated by the Block Sale Transferee)]1Board, the Block Sale Transferee Pale Fire Parties shall not, and the Pale Fire Parties shall cause its each of their controlled Affiliates and Associates (each as defined below) not to, in each case directly or indirectly, acting alone or as part of a groupin any manner:
(ai) makeengage in any solicitation of proxies or consents or become a “participant” in a “solicitation” (as such terms are defined in Regulation 14A under the Exchange Act) of proxies or consents (including, without limitation, any solicitation of consents that seeks to call a special meeting of stockholders), in each case, with respect to any securities of the Company or any securities convertible or exchangeable into or exercisable for any such securities (collectively, the “securities of the Company”);
(ii) form, join or in any way participate in any solicitation “group” (within the meaning of any proxy [(but without regard to the exclusion set forth in Rule 14a-1(l)(2)(ivSection 13(d)(3) under of the Exchange Act from Act) with any persons who are not Affiliates or Associates of the definition of “solicitation”)]2 Pale Fire Parties with respect to vote any Company Common Shares (or other equity securities of the Company; AmericasActive:18257362.3
(iii) deposit any securities of the Company in any voting trust or similar arrangement, or subject any securities of the Company to any arrangement or agreement with respect to the voting thereof, other than (A) any matter such voting trust or arrangement solely among the Pale Fire Parties and their Affiliates and Associates, (includingB) customary brokerage accounts, without limitationmargin accounts and prime brokerage accounts or (C) otherwise in accordance with this Agreement;
(iv) seek or submit, or encourage any person or entity to seek or submit, nomination(s) in furtherance of a “contested solicitation solicitation” for the appointment, election or removal of directors with respect to the Company), other than solicitations or acting as a participant in support of all of the Company’s nominees [including, without limitation, the nominees of the Block Sale Transferee pursuant to Article 5]3;
(bA) form, join in make any proposal for consideration by stockholders at any annual or in any way participate in a group (for the avoidance of doubt, the Block Sale Transferee shall not be deemed to have formed, joined in or in any way participated in a group with the Company as a result of the Block Sale Transferee’s execution of this Agreement) with respect to the Company Common Shares (or other equity securities of the Company) or deposit any Company Common Shares (or other equity securities of the Company) in a voting trust or similar arrangement or subject any Company Common Shares (or other equity securities of the Company) to any voting agreement or similar arrangement, or grant any proxy with respect to any Company Common Shares (or other equity securities of the Company) (other than to a designated representative of the 1 Note to form: bracketed language to be removed if Block Sale Transferee does not accept the board nomination rights. 2 Note to form: bracketed language to be removed if Block Sale Transferee does not accept the board nomination rights. 3 Note to form: bracketed language to be removed if Block Sale Transferee does not accept the board nomination rights. Company pursuant to a proxy statement of the Company), other than as contemplated by the Governance Agreement or the Stockholders Agreement or the transactions contemplated thereby;
(c) seek to call, or to request the calling of, or call a special meeting of stockholders of the Company or through any action by written consent of stockholders or referendum of stockholders of the Company, or seek to make, or make, a stockholder proposal (whether pursuant to Rule 14a-8 under the Exchange Act or otherwiseB) at any meeting of the stockholders of the Company, or make a request for a list of the Company’s stockholders, or[, other than pursuant to the Block Sale Transferee’s nomination rights in accordance with Article 5 of this Agreement,]4 seek election of a representative to the Board of Directors, seek to place a representative publicly comment on the Board of Directors or seek the removal of any director from the Board of Directors, or otherwise acting alone, or by participating in a group, seek to control or influence the governance or policies of the Company;
(d) effect or seek to effect (including, without limitation, by entering into any discussions, negotiations, agreements or understandings whether or not legally enforceable with any third Person)party proposal regarding any merger, offer or propose (whether publicly or otherwise) to effecttakeover, or cause or participate in, or in any way assist or facilitate any other Person to effect or seek, offer or propose (whether publicly or otherwise) to effect or participate in any acquisition of any Company Common Shares tender (or other equity securities of the Companyexchange) (or Beneficial Ownership thereof) in excess of the Ownership Limitation, except in accordance with Section 2.1; provided, that, for the avoidance of doubt, the Block Sale Transferee is permitted to Transfer to an unaffiliated third party any Company Common Shares (or other equity securities of the Company) Beneficially Owned by the Block Sale Transferee, subject to the provisions of Article 8 hereof, if applicable;
(e) effect or seek to effect (including, without limitation, by entering into any discussions, negotiations, agreements or understandings whether or not legally enforceable with any third Person), offer or propose (whether publicly or otherwise) to effect, or cause or participate in, or in any way assist or facilitate any other Person to effect or seek, offer or propose (whether publicly or otherwise) to effect or participate in (i) any tender offer or exchange offer, merger, acquisition, share exchange recapitalization, restructuring, disposition, or other business combination involving the Company or any of its Subsidiaries, (ii) any recapitalization, restructuring, liquidation, dissolution or other extraordinary similar transaction with respect to the Company or and/or any of its Subsidiaries subsidiaries prior to it being made public or any material portion (C) call or seek to call a special meeting of its stockholders or their businessestake or seek to take action by written consent of stockholders;
(vi) acquire, offer or propose to acquire, or (iii) any agree to acquire, whether by purchase, tender or exchange offer, through the acquisition of control of another person, by joining a partnership, limited partnership, syndicate or other group (including any material assets group of persons that would be treated as a single “person” under Section 13(d) of the Exchange Act), through swap or businesses hedging transactions or otherwise, any securities of the Company or any rights decoupled from the underlying securities of its Subsidiaries;the Company that would result in the Pale Fire Parties (together with their controlled Affiliates) owning, controlling or otherwise having any beneficial ownership (as determined under Rule 13d-3 of the Exchange Act) interest in more than 25% of the shares of Common Stock outstanding at such time (as adjusted for any stock splits, reclassifications, combinations, stock dividends or similar actions by the Company); provided, that for purposes of the foregoing beneficial ownership limitation, it is understood and agreed that any shares (A) acquired or underlying the Option Award (as defined below), (B) acquired or underlying any award or grant from the Company with respect to service as a director or officer of the Company, or (C) underlying any cash-settled total return swap agreements referencing shares of Common Stock, in each case acquired or owned by the Pale Fire Parties or any of their Affiliates, shall not be counted for the purpose of determining the beneficial ownership interest of the Pale Fire Parties under this section 1(a)(vi) ; or
(fvii) publicly disclose, make any request or cause or, in a material manner, facilitate submit any proposal to amend the terms of this Agreement other than through non-public communications with the Company or the Board that would not be reasonably determined to trigger public disclosure obligations for any Party.
(including without limitation through the filing by it of any document or report with the SEC or any other governmental agency or any disclosure to any 4 Note to form: bracketed language to be removed if Block Sale Transferee does not accept the board nomination rights. journalist, member of the media or securities analystb) of any intent, purpose, plan or proposal to obtain any waiver, or consent under, or any amendment of, any of the provisions of Section 2.1, this Section 3.1, or Article 4 (except as described Notwithstanding anything in Section 4.11(a) or bring any action elsewhere in this Agreement, the Pale Fire Parties shall be entitled to (i) contest vote any shares of Common Stock that they beneficially own as the validity of Section 2.1, this Section 3.1 or Article 4, or Pale Fire Parties determine in their sole discretion and (ii) seek a release from the restrictions contained in Section 2.1disclose, this Section 3.1 publicly or Article 4;
(g) unless required by lawotherwise, make how they intend to vote or issue or cause to be made or issued any public disclosure, announcement or statement (including without limitation the filing of any document or report with the SEC or any other governmental agency or any disclosure to any journalist, member of the media or securities analyst) (i) in support of any solicitation described in paragraph (a) above (other than solicitations by the Company), (ii) in support of any matter described in paragraph (c) above, (iii) concerning any potential matter described in paragraph (d) above; (iv) concerning any potential matter described in paragraph (e) above; or (v) negatively commenting upon the Company’s corporate strategy, business, corporate activities, board of directors or management (for the avoidance of doubt, making any factual statement about the Company’s corporate strategy, business, corporate activities, board of directors or management shall not be prohibited by this Section 3.1(g)(v)); or
(h) enter into any discussions, negotiations, agreements or understandings with any Person act with respect to any of the foregoing or advise, assist or seek to persuade others to take any action with respect to any of the foregoing. Notwithstanding the foregoing, (a) [the restrictions in Sections 3.1(d), 3.1(e), 3.1(f), 3.1(g)(iii), 3.1(g)(iv), 3.1(g)(v) and 3.1(h) (to the extent it relates to any of the foregoing) shall not apply at any time that (i) the Company fails to comply in all material respects with its obligations under Article 5 hereof, which failure continues unremedied for a period of 10 business days following receipt by the Company of a written notice from the Block Sale Transferee of such failure or (ii) the Block Sale Transferee has relinquished its nomination rights pursuant to Article 5 and all Block Sale Transferee nominated directors have resigned; or (b)]5 in the event that (x) the Board of Directors determines that the Company should engage in any transaction described in Section 3.1(e)(i) or 3.1(e)(ii), the Block Sale Transferee shall be permitted to participate in such Board of Directors’ approved transaction as a shareholder on the same terms and conditions as any other shareholder securities of the Company, (y) any stockholder proposal or other matter to be voted on by the Board stockholders of Directors determines that the Company should solicit and the reasons therefor.
(c) Notwithstanding anything in Section 1(a) or elsewhere in this Agreement, nothing in this Agreement shall prohibit or restrict the Pale Fire Parties from one or more Persons or enter into discussions with one or more Persons regarding, or invites any other Person or group to make a proposal (without similarly inviting the Block Sale Transferee to make a similar proposal) with respect to an acquisition of (i) all or substantially all of the equity securities or assets of the Company or any of its Subsidiaries (by merger, tender offer or otherwise) or (ii) any material assets or businesses of the Company or any of its Subsidiaries, the Block Sale Transferee shall have the right to make a non-public competing proposal to communicating privately with the Board of Directors in compliance with any written procedures generally applicable to Persons making proposals provided by the Company 5 Note to form: enumerated restrictions to be removed if the Block Sale Transferee does not accept the board nomination rights. or the Board of Directors or (z) any third party that is not an Affiliate of the Block Sale Transferee makes a bona fide offer or proposal, with respect to a matter described in Section 3.1(d) or 3.1(e) above (a “Third Party Proposal”), the Block Sale Transferee (A) shall have the right to make a non-public competing proposal to the Board of Directors and may publicly announce that it has made a competing proposal to the Board of Directors so long as such public announcement does not constitute an offer or a solicitation to any recipient thereof and (B) may tender, exchange or otherwise sell or transfer its Company Common Shares (or other equity securities of the Company) to such third party in accordance with the Third Party Proposal; provided, however, that in the case of clauses (y) and (z), the Block Sale Transferee shall be prohibited from participating with, joining in a group with or providing financing to any such third party). [For the avoidance of doubt, any discussions involving the directors nominated by the Block Sale Transferee pursuant to Article 5 hereof (i) at a meeting of the Board of Directors or (ii) with management of the Company, other members of the Board of Directors or any of the Company’s advisors or representativesofficers regarding any matter, in the case so long as such communications are not intended to, and would not reasonably be expected to, require any public disclosure of clauses (i) and such communications, (ii), while acting in such directors’ capacity as members ) communicating with stockholders of the Board of DirectorsCompany and AmericasActive:18257362.3 others in a manner that does not otherwise violate Section 1(a) or (iii) taking any action necessary to comply with any law, rule or regulation or any action required by any governmental or regulatory authority or stock exchange that has jurisdiction over the Pale Fire Parties.
(d) Nothing in Section 1(a) or elsewhere in this Agreement shall not be deemed to violate any limit the exercise in good faith by (A) Senkypl of his fiduciary duties in his capacities as a director or officer of the provisions Company or (B) Barta of xxx fiduciary duties in his capacity as a director of the Company.
(e) For purposes of this Article 3.]6Agreement, “Option Award” shall mean that certain Option Award dated as of the date hereof related to the grant to Senkypl of 3,500,000 non-qualified options under the Company’s 2011 Incentive Plan.
Appears in 1 contract
Samples: Investment Agreement (Groupon, Inc.)
Standstill Provisions. During Purchaser agrees that, during the Standstill Periodterm of this Agreement, unless expressly authorized in writing without the Company's prior written consent, Purchaser will not:
(a) acquire, announce an intention to do so by a majority of the members of the Board of Directorsacquire, acting through a committee of directors that qualify as “independent directors” as defined by applicable stock exchange listing rules [(which termoffer or propose to acquire, for this purpose, will exclude any directors nominated by the Block Sale Transferee)]1, the Block Sale Transferee shall not, and shall cause its Affiliates not toor agree to acquire, directly or indirectly, acting alone by purchase or otherwise, beneficial ownership of any Voting Securities, or direct or indirect rights to options to acquire (through purchase, exchange, conversion or otherwise) any Voting Securities, if, immediately after any such acquisition, Purchaser would beneficially own, in the aggregate, Voting Securities representing (x) more than 4.9% of the outstanding Voting Securities, or (y) more than 5.0% of the outstanding Voting Securities, provided that approval beneficially to own such percentage of Voting Securities is obtained from the New York Superintendent of Insurance prior to such increase to 5%, except in each case for any increase resulting from transactions in the ordinary course of the business of Purchaser as part underwriter, broker/dealer, investment manager or investment adviser or from ordinary trading activities, unless such transactions were made with the purpose of a group:changing or influencing the control of the Company;
(ab) seek representation on the Board of Directors of the Company or the removal of any Company Directors or a change in the composition or size of the Board;
(c) make any statement or proposal, whether written or oral, to the Board of Directors of the Company, or to any director, officer or agent of the Company, or make any public announcement or proposal whatsoever with respect to a merger or other business combination, sale or transfer of assets, recapitalization, dividend, share repurchase, liquidation or other extraordinary corporate transaction with the Company or any other transaction which could result in a change of control, solicit or encourage any other person to make any such statement or proposal, or take any action which might require the Company to make a public announcement regarding the possibility of any transaction referred to in this paragraph (c) or similar transaction, or advise, assist or encourage any other persons in connection with the foregoing, except in the ordinary course of its investment banking activities as financial advisor;
(d) make, or in any way participate participate, directly or indirectly, in any solicitation "solicitation" of any proxy ["proxies" (but without regard to the exclusion set forth as such terms are defined in Rule 14a-1(l)(2)(iv) 14a-1 under the Exchange Act from the definition of “solicitation”)]2 to 1934 Xxx) xx vote any Company Common Shares (Voting Securities, seek to advise, encourage or other equity securities of the Company) with respect to influence any matter (including, without limitation, any contested solicitation for the election of directors person or entity with respect to the Company)voting of any Voting Securities, initiate or propose any shareholder proposal or induce or attempt to induce any other than solicitations person to initiate any shareholder proposal, or acting as a participant in support of all of the Company’s nominees [including, without limitation, the nominees of the Block Sale Transferee pursuant to Article 5]3;
(b) form, join in or in execute any way participate in a group (for the avoidance of doubt, the Block Sale Transferee shall not be deemed to have formed, joined in or in any way participated in a group with the Company as a result of the Block Sale Transferee’s execution of this Agreement) written consent with respect to the Company Common Shares (or other equity securities of the Company) or deposit any Company Common Shares (or other equity securities of the Company) in a voting trust or similar arrangement or subject any Company Common Shares (or other equity securities of the Company) to any voting agreement or similar arrangement, or grant any proxy with respect to any Company Common Shares (or other equity securities of the Company) (other than to a designated representative of the 1 Note to form: bracketed language to be removed if Block Sale Transferee does not accept the board nomination rights. 2 Note to form: bracketed language to be removed if Block Sale Transferee does not accept the board nomination rights. 3 Note to form: bracketed language to be removed if Block Sale Transferee does not accept the board nomination rights. Company pursuant to a proxy statement of the Company), other than as contemplated by the Governance Agreement or the Stockholders Agreement or the transactions contemplated thereby;
(c) seek to call, or to request the calling of, or call a special meeting of the stockholders of the Company, or seek to make, or make, a stockholder proposal (whether pursuant to Rule 14a-8 under the Exchange Act or otherwise) at any meeting of the stockholders of the Company, or make a request for a list of the Company’s stockholders, or[, other than pursuant to the Block Sale Transferee’s nomination rights in accordance with Article 5 of this Agreement,]4 seek election of a representative to the Board of Directors, seek to place a representative on the Board of Directors or seek the removal of any director from the Board of Directors, or otherwise acting alone, or by participating in a group, seek to control or influence the governance or policies of the Company;
(d) effect or seek to effect (including, without limitation, by entering into any discussions, negotiations, agreements or understandings whether or not legally enforceable with any third Person), offer or propose (whether publicly or otherwise) to effect, or cause or participate in, or in any way assist or facilitate any other Person to effect or seek, offer or propose (whether publicly or otherwise) to effect or participate in any acquisition of any Company Common Shares (or other equity securities of the Company) (or Beneficial Ownership thereof) in excess of the Ownership Limitation, except in accordance with Section 2.1; provided, that, for the avoidance of doubt, the Block Sale Transferee is permitted to Transfer to an unaffiliated third party any Company Common Shares (or other equity securities of the Company) Beneficially Owned by the Block Sale Transferee, subject to the provisions of Article 8 hereof, if applicable;
(e) effect or seek to effect (including, without limitation, by entering into any discussions, negotiations, agreements or understandings whether or not legally enforceable with any third Person), offer or propose (whether publicly or otherwise) to effect, or cause or participate in, or in any way assist or facilitate any other Person to effect or seek, offer or propose (whether publicly or otherwise) to effect or participate in (i) any tender offer or exchange offer, merger, acquisition, share exchange or other business combination involving the Company or any of its Subsidiaries, (ii) any recapitalization, restructuring, liquidation, dissolution or other extraordinary transaction with respect to the Company or any of its Subsidiaries or any material portion of its or their businesses, or (iii) any acquisition of any material assets or businesses of the Company or any of its Subsidiaries;
(f) publicly disclose, or cause or, in a material manner, facilitate the public disclosure (including without limitation through the filing by it of any document or report with the SEC or any other governmental agency or any disclosure to any 4 Note to form: bracketed language to be removed if Block Sale Transferee does not accept the board nomination rights. journalist, member of the media or securities analyst) of any intent, purpose, plan or proposal to obtain any waiver, or consent under, or any amendment of, any of the provisions of Section 2.1, this Section 3.1, or Article 4 (except as described in Section 4.1) or bring any action to (i) contest the validity of Section 2.1, this Section 3.1 or Article 4, or (ii) seek a release from the restrictions contained in Section 2.1, this Section 3.1 or Article 4;
(g) unless required by law, make or issue or cause to be made or issued any public disclosure, announcement or statement (including without limitation the filing of any document or report with the SEC or any other governmental agency or any disclosure to any journalist, member of the media or securities analyst) (i) in support of any solicitation described in paragraph (a) above (other than solicitations by the Company), (ii) in support of any matter described in paragraph (c) above, (iii) concerning any potential matter described in paragraph (d) above; (iv) concerning any potential matter described in paragraph (e) above; or (v) negatively commenting upon the Company’s corporate strategy, business, corporate activities, board of directors or management (for the avoidance of doubt, making any factual statement about the Company’s corporate strategy, business, corporate activities, board of directors or management shall not be prohibited by this Section 3.1(g)(v)); or
(h) enter into any discussions, negotiations, agreements or understandings with any Person with respect to any of the foregoing or advise, assist or seek to persuade others to take any action with respect to any of the foregoing. Notwithstanding the foregoing, (a) [the restrictions in Sections 3.1(d), 3.1(e), 3.1(f), 3.1(g)(iii), 3.1(g)(iv), 3.1(g)(v) and 3.1(h) (to the extent it relates to any of the foregoing) shall not apply at any time that (i) the Company fails to comply in all material respects with its obligations under Article 5 hereof, which failure continues unremedied for a period of 10 business days following receipt by the Company of a written notice from the Block Sale Transferee of such failure or (ii) the Block Sale Transferee has relinquished its nomination rights pursuant to Article 5 and all Block Sale Transferee nominated directors have resigned; or (b)]5 in the event that (x) the Board of Directors determines that the Company should engage in any transaction described in Section 3.1(e)(i) or 3.1(e)(ii), the Block Sale Transferee shall be permitted to participate in such Board of Directors’ approved transaction as a shareholder on the same terms and conditions as any other shareholder of the Company, (y) the Board of Directors determines that the Company should solicit from one or more Persons or enter into discussions with one or more Persons regarding, or invites any other Person or group to make a proposal (without similarly inviting the Block Sale Transferee to make a similar proposal) with respect to an acquisition of (i) all or substantially all of the equity securities or assets of the Company or any of its Subsidiaries (by merger, tender offer or otherwise) or (ii) any material assets or businesses of the Company or any of its Subsidiaries, the Block Sale Transferee shall have the right to make a non-public competing proposal to the Board of Directors in compliance with any written procedures generally applicable to Persons making proposals provided by the Company 5 Note to form: enumerated restrictions to be removed if the Block Sale Transferee does not accept the board nomination rights. or the Board of Directors or (z) any third party that is not an Affiliate of the Block Sale Transferee makes a bona fide offer or proposal, with respect to a matter described in Section 3.1(d) or 3.1(e) above (a “Third Party Proposal”), the Block Sale Transferee (A) shall have the right to make a non-public competing proposal to the Board of Directors and may publicly announce that it has made a competing proposal to the Board of Directors so long as such public announcement does not constitute an offer or a solicitation to any recipient thereof and (B) may tender, exchange or otherwise sell or transfer its Company Common Shares (or other equity securities of the Company) to such third party in accordance with the Third Party Proposal; provided, however, that in the case of clauses (y) and (z), the Block Sale Transferee shall be prohibited from participating with, joining in a group with or providing financing to any such third party). [For the avoidance of doubt, any discussions involving the directors nominated by the Block Sale Transferee pursuant to Article 5 hereof (i) at a meeting of the Board of Directors or (ii) with management of the Company, other members of the Board of Directors or any of the Company’s advisors or representatives, in the case of clauses (i) and (ii), while acting in such directors’ capacity as members of the Board of Directors, shall not be deemed to violate any of the provisions of this Article 3.]6the
Appears in 1 contract
Samples: Standstill Agreement (Metlife Inc)
Standstill Provisions. During (a) BLR Partners agrees that, from the date of this Agreement until the earlier of (x) the date that is thirty (30) days prior to the deadline for the submission of stockholder nominations for the 2020 annual meeting of stockholders pursuant to the Company’s Bylaws or (y) the date that is 120 days prior to the first anniversary of the 2019 Annual Meeting (the “Standstill Period”), unless expressly authorized in writing to do so by a majority neither it nor any of the members of the Board of Directors, acting through a committee of directors that qualify as “independent directors” as defined by applicable stock exchange listing rules [(which term, for this purpose, will exclude any directors nominated by the Block Sale Transferee)]1, the Block Sale Transferee shall notits Affiliates or Associates will, and shall it will cause each of its Affiliates and Associates not to, directly or indirectly, acting alone or as part of a groupin any manner:
(ai) makeengage in any solicitation of proxies or consents or become a “participant” in a “solicitation” (as such terms are defined in Regulation 14A under the Exchange Act) of proxies or consents (including, without limitation, any solicitation of consents that seeks to call a special meeting of stockholders), in each case, with respect to securities of the Company;
(ii) form, join or in any way participate in any solicitation “group” (within the meaning of any proxy [(but without regard to the exclusion set forth in Rule 14a-1(l)(2)(ivSection 13(d)(3) under of the Exchange Act from the definition of “solicitation”)]2 to vote any Company Common Shares (or other equity securities of the CompanyAct) with respect to the Common Stock (other than a “group” that includes all or some of the entities or persons identified on Exhibit A, but does not include any matter other entities or persons not identified on Exhibit A as of the date hereof); provided, however, that nothing herein shall limit the ability of an Affiliate of BLR Partners to join the “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;
(includingiii) deposit any Common Stock in any voting trust or subject any Common Stock to any arrangement or agreement with respect to the voting of any Common Stock, without limitationother than any such voting trust, arrangement or agreement solely among the members of BLR Partners and otherwise in accordance with this Agreement;
(iv) seek, or encourage any person or entity, to submit nominations in furtherance of a “contested solicitation solicitation” for the election or removal of directors with respect to the Company)Company or, except as specifically permitted in Section 1, seek, encourage or take any other than solicitations action with respect to the election or acting as a participant in support removal of all any directors;
(A) make any proposal for consideration by stockholders at any annual or special meeting of stockholders of the Company’s nominees [including, (B) make any offer or proposal (with or without limitationconditions) with respect to any merger, acquisition, recapitalization, restructuring, disposition or other business combination involving the nominees of Company, (C) affirmatively solicit a third party, on an unsolicited basis, to make an offer or proposal (with or without conditions) with respect to any merger, acquisition, recapitalization, restructuring, disposition or other business combination involving the Block Sale Transferee pursuant to Article 5]3;
Company, or knowingly encourage, initiate or assist any third party in making such an offer or proposal, or (bD) formpublicly comment on any third party proposal regarding any merger, join in acquisition, recapitalization, restructuring, disposition, or in any way participate in a group (for the avoidance of doubt, the Block Sale Transferee shall not be deemed to have formed, joined in or in any way participated in a group with the Company as a result of the Block Sale Transferee’s execution of this Agreement) other business combination with respect to the Company Common Shares by such third party prior to such proposal becoming public;
(vi) seek, alone or other equity in concert with others, representation on the Board, except as specifically permitted in Section 1;
(vii) seek to advise, encourage, support or influence any person or entity with respect to the voting or disposition of any securities of the Company) Company at any annual or deposit any Company Common Shares (or other equity securities of the Company) in a voting trust or similar arrangement or subject any Company Common Shares (or other equity securities of the Company) to any voting agreement or similar arrangement, or grant any proxy with respect to any Company Common Shares (or other equity securities of the Company) (other than to a designated representative of the 1 Note to form: bracketed language to be removed if Block Sale Transferee does not accept the board nomination rights. 2 Note to form: bracketed language to be removed if Block Sale Transferee does not accept the board nomination rights. 3 Note to form: bracketed language to be removed if Block Sale Transferee does not accept the board nomination rights. Company pursuant to a proxy statement of the Company), other than as contemplated by the Governance Agreement or the Stockholders Agreement or the transactions contemplated thereby;
(c) seek to call, or to request the calling of, or call a special meeting of the stockholders of the Company, or seek to make, or make, a stockholder proposal (whether pursuant to Rule 14a-8 under the Exchange Act or otherwise) at any meeting of the stockholders of the Company, or make a request for a list of the Company’s stockholders, or[, other than pursuant to the Block Sale Transferee’s nomination rights in accordance with Article 5 of this Agreement,]4 seek election of a representative to the Board of Directors, seek to place a representative on the Board of Directors or seek the removal of any director from the Board of Directors, or otherwise acting alone, or by participating in a group, seek to control or influence the governance or policies of the Company;
(d) effect or seek to effect (including, without limitation, by entering into any discussions, negotiations, agreements or understandings whether or not legally enforceable with any third Person), offer or propose (whether publicly or otherwise) to effect, or cause or participate in, or in any way assist or facilitate any other Person to effect or seek, offer or propose (whether publicly or otherwise) to effect or participate in any acquisition of any Company Common Shares (or other equity securities of the Company) (or Beneficial Ownership thereof) in excess of the Ownership Limitation, except in accordance with Section 2.1; provided, that, for the avoidance of doubt, the Block Sale Transferee is permitted to Transfer to an unaffiliated third party any Company Common Shares (or other equity securities of the Company) Beneficially Owned by the Block Sale Transferee, subject to the provisions of Article 8 hereof, if applicable;
(e) effect or seek to effect (including, without limitation, by entering into any discussions, negotiations, agreements or understandings whether or not legally enforceable with any third Person), offer or propose (whether publicly or otherwise) to effect, or cause or participate in, or in any way assist or facilitate any other Person to effect or seek, offer or propose (whether publicly or otherwise) to effect or participate in (i) any tender offer or exchange offer, merger, acquisition, share exchange or other business combination involving the Company or any of its Subsidiaries, (ii) any recapitalization, restructuring, liquidation, dissolution or other extraordinary transaction with respect to the Company or any of its Subsidiaries or any material portion of its or their businesses, or (iii) any acquisition of any material assets or businesses of the Company or any of its Subsidiaries;
(f) publicly disclose, or cause or, in a material manner, facilitate the public disclosure (including without limitation through the filing by it of any document or report with the SEC or any other governmental agency or any disclosure to any 4 Note to form: bracketed language to be removed if Block Sale Transferee does not accept the board nomination rights. journalist, member of the media or securities analyst) of any intent, purpose, plan or proposal to obtain any waiver, or consent under, or any amendment of, any of the provisions of Section 2.1, this Section 3.1, or Article 4 (except as described in Section 4.1) or bring any action to (i) contest the validity of Section 2.1, this Section 3.1 or Article 4, or (ii) seek a release from the restrictions contained in Section 2.1, this Section 3.1 or Article 4;
(g) unless required by law, make or issue or cause to be made or issued any public disclosure, announcement or statement (including without limitation the filing of any document or report with the SEC or any other governmental agency or any disclosure to any journalist, member of the media or securities analyst) (i) in support of any solicitation described in paragraph (a) above (other than solicitations by the Company), (ii) in support of any matter described in paragraph (c) above, (iii) concerning any potential matter described in paragraph (d) above; (iv) concerning any potential matter described in paragraph (e) above; or (v) negatively commenting upon the Company’s corporate strategy, business, corporate activities, board of directors or management (for the avoidance of doubt, making any factual statement about the Company’s corporate strategy, business, corporate activities, board of directors or management shall not be prohibited by this Section 3.1(g)(v))1; or
(hviii) enter into make any discussions, negotiations, agreements request or understandings submit any proposal to amend the terms of this Agreement other than through non-public communications with the Company that would not be reasonably determined to trigger public disclosure obligations for any Person with respect to any of the foregoing or advise, assist or seek to persuade others to take any action with respect to any of the foregoing. Party.
(b) Notwithstanding the foregoing, (a) [the restrictions nothing in Sections 3.1(d), 3.1(e), 3.1(f), 3.1(g)(iii), 3.1(g)(iv), 3.1(g)(v) and 3.1(h) (to the extent it relates to any of the foregoing) this Agreement shall not apply at any time that prohibit or restrict BLR Partners from (i) the Company fails to comply in all material respects communicating privately with its obligations under Article 5 hereof, which failure continues unremedied for a period of 10 business days following receipt by the Company of a written notice from the Block Sale Transferee of such failure or (ii) the Block Sale Transferee has relinquished its nomination rights pursuant to Article 5 and all Block Sale Transferee nominated directors have resigned; or (b)]5 in the event that (x) the Board of Directors determines that the Company should engage in any transaction described in Section 3.1(e)(i) or 3.1(e)(ii), the Block Sale Transferee shall be permitted to participate in such Board of Directors’ approved transaction as a shareholder on the same terms and conditions as any other shareholder of the Company, (y) the Board of Directors determines that the Company should solicit from one or more Persons or enter into discussions with one or more Persons regarding, or invites any other Person or group to make a proposal (without similarly inviting the Block Sale Transferee to make a similar proposal) with respect to an acquisition of (i) all or substantially all of the equity securities or assets of the Company or any of its Subsidiaries (by merger, tender offer or otherwise) or (ii) any material assets or businesses of the Company or any of its Subsidiaries, the Block Sale Transferee shall have the right to make a non-public competing proposal to the Board of Directors in compliance with any written procedures generally applicable to Persons making proposals provided by the Company 5 Note to form: enumerated restrictions to be removed if the Block Sale Transferee does not accept the board nomination rights. or the Board of Directors or (z) any third party that is not an Affiliate of the Block Sale Transferee makes a bona fide offer or proposal, with respect to a matter described in Section 3.1(d) or 3.1(e) above (a “Third Party Proposal”), the Block Sale Transferee (A) shall have the right to make a non-public competing proposal to the Board of Directors and may publicly announce that it has made a competing proposal to the Board of Directors so long as such public announcement does not constitute an offer or a solicitation to any recipient thereof and (B) may tender, exchange or otherwise sell or transfer its Company Common Shares (or other equity securities of the Company) to such third party in accordance with the Third Party Proposal; provided, however, that in the case of clauses (y) and (z), the Block Sale Transferee shall be prohibited from participating with, joining in a group with or providing financing to any such third party). [For the avoidance of doubt, any discussions involving the directors nominated by the Block Sale Transferee pursuant to Article 5 hereof (i) at a meeting of the Board of Directors or (ii) with management of the Company, other members of the Board of Directors or any of the Company’s advisors or representativesofficers regarding any matter, in the case so long as such communications are not intended to, and would not reasonably be expected to, require any public disclosure of clauses (i) and such communications, (ii), while acting in such directors’ capacity as members ) communicating with stockholders of the Board of DirectorsCompany and others in a manner that does not otherwise violate Section 2(a) or Section 11, or (iii) taking any action necessary to comply with any law, rule or regulation or any action required by any governmental or regulatory authority or stock exchange that has jurisdiction over BLR Partners.
(c) Nothing in Section 2(a) or elsewhere in this Agreement shall not be deemed to violate any limit the exercise in good faith by Mr. Hobby of his fiduciary duties solely in his capacity as a director of the provisions of this Article 3.]6Company.
Appears in 1 contract
Standstill Provisions. During the Standstill Period, unless expressly authorized in writing to do so by a majority of the members of the Board of Directors, acting through a committee of directors that qualify as “independent directors” as defined by applicable stock exchange listing rules [(which term, for this purpose, will exclude any directors nominated by the Block Sale Transferee)]1, the Block Sale Transferee The Investor shall not, and shall not suffer or permit any Subsidiaries of the Investor to or, to the extent the Investor possesses the power to prevent, permit any Affiliates or Associates of the Investor to (and shall use all reasonable best efforts to cause its such Affiliates and Associates not to), directly or indirectly, whether acting alone or as part of a groupin concert with others:
(a) makeform, join or participate in, or in any way participate in any solicitation of any proxy [(but without regard to encourage the exclusion set forth in Rule 14a-1(l)(2)(iv) under the Exchange Act from the definition of “solicitation”)]2 to vote any Company Common Shares (or other equity securities of the Company) formation of, a Group with respect to any matter (including, without limitation, any contested solicitation for the election of directors with respect to the Company)Shares, other than solicitations or acting as a participant in support of all Group consisting solely of the Company’s nominees [includingInvestor, without limitation, the nominees or Affiliates or Associates of the Block Sale Transferee pursuant to Article 5]3Investor, of Class B Entities or of Qualified Parties of Class B Entities or the Investor;
(b) formdeposit any Shares into a voting trust or (except as provided in this Agreement) subject any such Shares to any arrangement or agreement with respect to the voting or Transfer thereof, join in other than any such trust, arrangement or in agreement (i) the only parties to, or beneficiaries of which, are the Investor or any way participate Controlled Subsidiaries of the Investor, any of the Class B Entities, Parent or any Qualified Parties of the Investor or any of the Class B Entities and (ii) the terms of which prohibit any party thereto from acting in a group (for manner inconsistent with this Agreement; PROVIDED, that all of the avoidance of doubt, the Block Sale Transferee Shares deposited into any such trust or subjected to any such arrangement or agreement shall not be deemed to have formedbe Beneficially Owned by the Investor or Affiliates or Associates of the Investor for all purposes of this Agreement;
(i) except for Shares acquired in the Contribution or upon exercise of the Investor's rights set forth in Section 7 or 10, joined in purchase or in otherwise acquire Beneficial Ownership of or otherwise Beneficially Own any way participated in a group Voting Securities of Parent such that the Investor, together with the Company Affiliates of the Investor, will Beneficially Own 10% or more of the Parent Class A Shares (it being understood and agreed that any Shares acquired and from time to time Beneficially Owned by the Investor and its Affiliates as a result of the Block Sale Transferee’s execution of this Agreement) with respect to the Company Common Shares (or other equity securities ownership of the CompanyVoting Securities of CSC and the exchange thereof in the Merger as disclosed to Parent pursuant to Section 2(a) or deposit any Company Common Shares (or other equity securities of the Company) in a voting trust or similar arrangement or subject any Company Common Shares (or other equity securities of the Company) to any voting agreement or similar arrangementshall be included and count toward such 10% threshold), or grant (ii) at any proxy with respect to time purchase or otherwise acquire any Company Common Shares (or other equity securities in violation of the Company) (other than to a designated representative of the 1 Note to form: bracketed language to be removed if Block Sale Transferee does not accept the board nomination rights. 2 Note to form: bracketed language to be removed if Block Sale Transferee does not accept the board nomination rights. 3 Note to form: bracketed language to be removed if Block Sale Transferee does not accept the board nomination rights. Company pursuant to a proxy statement of the Company), other than as contemplated by the Governance Agreement or the Stockholders Agreement or the transactions contemplated thereby;
(c) seek to call, or to request the calling of, or call a special meeting of the stockholders of the Company, or seek to make, or make, a stockholder proposal (whether pursuant to Rule 14a-8 Regulation M under the Exchange Act (or otherwiseany successor provision) at any meeting of and the stockholders of the Company, or make a request for a list of the Company’s stockholders, or[, other than pursuant to the Block Sale Transferee’s nomination rights in accordance with Article 5 of this Agreement,]4 seek election of a representative to the Board of Directors, seek to place a representative on the Board of Directors or seek the removal of any director from the Board of Directors, or otherwise acting alone, or by participating in a group, seek to control or influence the governance or policies of the CompanySEC promulgated thereunder;
(d) effect or seek agree to effect any reduction in its equity interest in Parent for up to 180 days following delivery by Parent of a written notice that Parent is proposing to consummate a business combination to be accounted for as a pooling of interests; PROVIDED, that this restriction shall terminate if Parent has not consummated such business combination within 90 days of the date of such written notice and PROVIDED, FURTHER, that this restriction shall be inapplicable to the extent any reduction would not adversely affect the accounting treatment of such business combination as a pooling of interests; or
(includinge) advise, without limitationassist (including by knowingly providing or arranging financing for that purpose) or knowingly encourage, by entering into any discussions, negotiations, agreements induce or understandings whether attempt to encourage or not legally enforceable with any third Person), offer or propose (whether publicly or otherwise) to effect, or cause or participate in, or in any way assist or facilitate induce any other Person to effect or seek, offer or propose (whether publicly or otherwise) take any actions referred to effect or participate in any acquisition of any Company Common Shares (or other equity securities of the Company) (or Beneficial Ownership thereof) in excess of the Ownership Limitation, except in accordance with Section 2.1; provided, that, for the avoidance of doubt, the Block Sale Transferee is permitted to Transfer to an unaffiliated third party any Company Common Shares (or other equity securities of the Company) Beneficially Owned by the Block Sale Transferee, subject to the provisions of Article 8 hereof, if applicable;
(e) effect or seek to effect (including, without limitation, by entering into any discussions, negotiations, agreements or understandings whether or not legally enforceable with any third Person), offer or propose (whether publicly or otherwise) to effect, or cause or participate in, or in any way assist or facilitate any other Person to effect or seek, offer or propose (whether publicly or otherwise) to effect or participate in (i) any tender offer or exchange offer, merger, acquisition, share exchange or other business combination involving the Company or any of its Subsidiaries, (ii) any recapitalization, restructuring, liquidation, dissolution or other extraordinary transaction with respect to the Company or any of its Subsidiaries or any material portion of its or their businesses, or (iii) any acquisition of any material assets or businesses of the Company or any of its Subsidiaries;
(f) publicly disclose, or cause or, in a material manner, facilitate the public disclosure (including without limitation through the filing by it of any document or report with the SEC or any other governmental agency or any disclosure to any 4 Note to form: bracketed language to be removed if Block Sale Transferee does not accept the board nomination rights. journalist, member of the media or securities analyst) of any intent, purpose, plan or proposal to obtain any waiver, or consent under, or any amendment of, any of the provisions of Section 2.1, this Section 3.1, or Article 4 (except as described in Section 4.1) or bring any action to (i) contest the validity of Section 2.1, this Section 3.1 or Article 4, or (ii) seek a release from the restrictions contained in Section 2.1, this Section 3.1 or Article 4;
(g) unless required by law, make or issue or cause to be made or issued any public disclosure, announcement or statement (including without limitation the filing of any document or report with the SEC or any other governmental agency or any disclosure to any journalist, member of the media or securities analyst) (i) in support of any solicitation described in paragraph foregoing paragraphs (a) above (other than solicitations by the Company), (ii) in support of any matter described in paragraph (c) above, (iii) concerning any potential matter described in paragraph through (d) above; (iv) concerning any potential matter described in paragraph (e) above; or (v) negatively commenting upon the Company’s corporate strategy, business, corporate activities, board of directors or management (for the avoidance of doubt, making any factual statement about the Company’s corporate strategy, business, corporate activities, board of directors or management shall not be prohibited by this Section 3.1(g)(v)); or
(h) enter into any discussions, negotiations, agreements or understandings with any Person with respect to any of the foregoing or advise, assist or seek to persuade others to take any action with respect to any of the foregoing. Notwithstanding the foregoing, (a) [the restrictions in Sections 3.1(d), 3.1(e), 3.1(f), 3.1(g)(iii), 3.1(g)(iv), 3.1(g)(v) and 3.1(h) (to the extent it relates to any of the foregoing) shall not apply at any time that (i) the Company fails to comply in all material respects with its obligations under Article 5 hereof, which failure continues unremedied for a period of 10 business days following receipt by the Company of a written notice from the Block Sale Transferee of such failure or (ii) the Block Sale Transferee has relinquished its nomination rights pursuant to Article 5 and all Block Sale Transferee nominated directors have resigned; or (b)]5 in the event that (x) the Board of Directors determines that the Company should engage in any transaction described in Section 3.1(e)(i) or 3.1(e)(ii), the Block Sale Transferee shall be permitted to participate in such Board of Directors’ approved transaction as a shareholder on the same terms and conditions as any other shareholder of the Company, (y) the Board of Directors determines that the Company should solicit from one or more Persons or enter into discussions with one or more Persons regarding, or invites any other Person or group to make a proposal (without similarly inviting the Block Sale Transferee to make a similar proposal) with respect to an acquisition of (i) all or substantially all of the equity securities or assets of the Company or any of its Subsidiaries (by merger, tender offer or otherwise) or (ii) any material assets or businesses of the Company or any of its Subsidiaries, the Block Sale Transferee shall have the right to make a non-public competing proposal to the Board of Directors in compliance with any written procedures generally applicable to Persons making proposals provided by the Company 5 Note to form: enumerated restrictions to be removed if the Block Sale Transferee does not accept the board nomination rights. or the Board of Directors or (z) any third party that is not an Affiliate of the Block Sale Transferee makes a bona fide offer or proposal, with respect to a matter described in Section 3.1(d) or 3.1(e) above (a “Third Party Proposal”), the Block Sale Transferee (A) shall have the right to make a non-public competing proposal to the Board of Directors and may publicly announce that it has made a competing proposal to the Board of Directors so long as such public announcement does not constitute an offer or a solicitation to any recipient thereof and (B) may tender, exchange or otherwise sell or transfer its Company Common Shares (or other equity securities of the Company) to such third party in accordance with the Third Party Proposal; provided, however, that in the case of clauses (y) and (z), the Block Sale Transferee shall be prohibited from participating with, joining in a group with or providing financing to any such third party). [For the avoidance of doubt, any discussions involving the directors nominated by the Block Sale Transferee pursuant to Article 5 hereof (i) at a meeting of the Board of Directors or (ii) with management of the Company, other members of the Board of Directors or any of the Company’s advisors or representatives, in the case of clauses (i) and (ii), while acting in such directors’ capacity as members of the Board of Directors, shall not be deemed to violate any of the provisions of this Article 3.]6.
Appears in 1 contract
Samples: Stockholders Agreement (Tele Communications Inc /Co/)
Standstill Provisions. During Pxxxxxxxxx agrees that the “Standstill Period” shall commence on the date of this Agreement and shall terminate on the tenth anniversary hereof.
a. Xxxxxxxxxx agrees that, during the Standstill Period, unless expressly authorized in writing to do so by a majority without the prior written consent of the members of the Board of DirectorsBoard, acting through a committee of directors that qualify as “independent directors” as defined by applicable stock exchange listing rules [(which term, for this purpose, will exclude any directors nominated by the Block Sale Transferee)]1, the Block Sale Transferee he shall not, and shall cause its Affiliates not todirectly or indirectly:
(i) acquire, announce an intention to acquire, offer or propose to acquire, or agree to acquire, directly or indirectly, acting alone by purchase or otherwise, beneficial ownership of (A) any Common Stock or direct or indirect rights or options to acquire (through purchase, exchange, conversion or otherwise) any Common Stock, excepting solely Common Stock or other Voting Securities (I) received as part a result of a group:stock dividend, stock distribution or stock split, (II) issued by the Company to Pxxxxxxxxx in connection with any reorganization or recapitalization of the Company or (III) issued by the Company in connection with any rights offering;
(aii) make, solicit proxies (or written consents) or assist or participate in any way participate other way, directly or indirectly, in any solicitation of any proxy [proxies (but without regard or written consents), or otherwise become a “participant” in a “solicitation,” as such terms are defined in Instruction 3 of Item 4 of Schedule 14A and Rule 14a-1 of Regulation 14A, respectively, under the Securities Exchange Act of 1934, as amended (the “Exchange Act”), in opposition to the exclusion set forth in Rule 14a-1(l)(2)(iv) under the Exchange Act from the definition of “solicitation”)]2 to vote any Company Common Shares (recommendation or other equity securities proposal of the Company) with respect Board, or recommend or request or induce or attempt to induce any matter (includingother person to take any such actions, without limitationor seek to advise, encourage or influence any contested solicitation for the election of directors other person with respect to the Company)voting of (or the execution of a written consent in respect of) the Common Stock or other Voting Securities, other than solicitations or acting as execute any written consent in lieu of a participant in support of all meeting of the Company’s nominees [including, without limitation, the nominees holders of the Block Sale Transferee pursuant to Article 5]3;
(b) form, join in Common Stock or in any way participate in other Voting Securities or grant a group (for the avoidance of doubt, the Block Sale Transferee shall not be deemed to have formed, joined in or in any way participated in a group with the Company as a result of the Block Sale Transferee’s execution of this Agreement) proxy with respect to the Company voting of the Common Shares (Stock or other equity securities of the Company) or deposit any Company Common Shares (or other equity securities of the Company) in a voting trust or similar arrangement or subject any Company Common Shares (or other equity securities of the Company) Voting Securities to any voting agreement or similar arrangement, or grant any proxy with respect to any Company Common Shares (or other equity securities of the Company) (person other than to a designated representative of the 1 Note to form: bracketed language to be removed if Block Sale Transferee does not accept Board or persons appointed as proxies by the board nomination rights. 2 Note to form: bracketed language to be removed if Block Sale Transferee does not accept the board nomination rights. 3 Note to form: bracketed language to be removed if Block Sale Transferee does not accept the board nomination rights. Company Board or Gabelli or his designee pursuant to a proxy statement of the Company), other than as contemplated by the Governance Agreement or the Stockholders Agreement or the transactions contemplated therebySection III.2 hereof;
(ciii) initiate, propose or submit one or more stockholder proposals or induce or attempt to induce any other person to initiate any stockholder proposal;
(iv) seek to call, call or to request the calling call of, or call a special meeting of the stockholders of the Company, or seek to make, or make, a stockholder proposal (whether pursuant to Rule 14a-8 under the Exchange Act or otherwise) at any meeting of the stockholders of the Company’s stockholders, or make a request for a list of the Company’s stockholders;
(v) form, or[join or in any way participate in a “group” (within the meaning of Section 13(d)(3) of the Exchange Act) for the purpose of acquiring, holding, voting or disposing of any securities of the Company;
(vi) vote for any nominee or nominees for election to the Board, other than pursuant those nominated or supported by the Board, or consent to the Block Sale Transferee’s nomination rights in accordance with Article 5 become a nominee for election as a member of this Agreement,]4 seek election of a representative to the Board of Directorsunless nominated by the Board;
(vii) seek, seek alone or in concert with others, to place a representative or other affiliate or nominee on the Board of Directors or seek the removal of any director from member of the Board or a change in the size or composition of Directorsthe Board;
(viii) deposit any Common Stock or other Voting Securities in a voting trust or enter into any other arrangement or agreement with respect to the voting thereof except pursuant to Section III.2 hereof;
(ix) acquire or agree, offer, seek or propose to acquire, or otherwise acting alonecause to be acquired, ownership (including beneficial ownership) of any of the assets or business of the Company or any rights or options to acquire any such assets or business from any person;
(x) seek, propose, or by participating in make any statement with respect to, or solicit, negotiate with, or provide any information to any person with respect to, a groupmerger, seek to consolidation, acquisition of control or influence other business combination, tender or exchange offer, purchase, sale or transfer of assets or securities, dissolution, liquidation, reorganization, recapitalization, dividend, share repurchase or similar transaction involving the governance Company, its subsidiaries or policies its business, whether or not any such transaction involves a change of control of the Company;
(dxi) effect take any action, alone or seek to effect (including, without limitation, by entering into any discussions, negotiations, agreements or understandings whether or not legally enforceable in concert with any third Person)other person, offer or propose (whether publicly or otherwise) to effectadvise, or cause or participate infinance, or in any way assist or facilitate any other Person to effect or seek, offer or propose (whether publicly or otherwise) to effect or participate in or encourage any acquisition person to take any action which is prohibited to be taken by Pxxxxxxxxx or any of his affiliates or associates pursuant to this Agreement, or make any Company Common Shares (investment in or enter into any arrangement with, any other equity securities person that engages, or offers or proposes to engage in any of the Company) (or Beneficial Ownership thereof) in excess of the Ownership Limitation, except in accordance with Section 2.1; provided, that, for the avoidance of doubt, the Block Sale Transferee is permitted to Transfer to an unaffiliated third party any Company Common Shares (or other equity securities of the Company) Beneficially Owned by the Block Sale Transferee, subject to the provisions of Article 8 hereof, if applicableforegoing;
(exii) effect or seek to effect (including, without limitation, by entering into any discussions, negotiations, agreements or understandings whether or not legally enforceable with any third Person), offer or propose (whether publicly or otherwise) to effectdisclose publicly, or cause privately in a manner that could reasonably be expected to become public, any intention, plan or participate inarrangement inconsistent with the foregoing;
(xiii) make any request or demand to inspect the records of the Company or to obtain a shareholders list for the Company or encourage any shareholder or other persons to do so;
(xiv) commence, encourage, or support any derivative action in the name of the Company or any way assist or facilitate any other Person to effect or seek, offer or propose (whether publicly or otherwise) to effect or participate in (i) any tender offer or exchange offer, merger, acquisition, share exchange or other business combination involving class action against the Company or any of its Subsidiaries, (ii) any recapitalization, restructuring, liquidation, dissolution officers or other extraordinary transaction with respect to the Company or any of its Subsidiaries or any material portion of its or their businesses, or (iii) any acquisition of any material assets or businesses of the Company or any of its Subsidiaries;
(f) publicly disclose, or cause or, in a material manner, facilitate the public disclosure (including without limitation through the filing by it of any document or report with the SEC or any other governmental agency or any disclosure to any 4 Note to form: bracketed language to be removed if Block Sale Transferee does not accept the board nomination rights. journalist, member of the media or securities analyst) of any intent, purpose, plan or proposal to obtain any waiver, or consent under, or any amendment of, any of the provisions of Section 2.1, this Section 3.1, or Article 4 (except as described in Section 4.1) or bring any action to (i) contest the validity of Section 2.1, this Section 3.1 or Article 4, or (ii) seek a release from the restrictions contained in Section 2.1, this Section 3.1 or Article 4;
(g) unless required by law, make or issue or cause to be made or issued any public disclosure, announcement or statement (including without limitation the filing of any document or report with the SEC or any other governmental agency or any disclosure to any journalist, member of the media or securities analyst) (i) in support of any solicitation described in paragraph (a) above (other than solicitations by the Company), (ii) in support of any matter described in paragraph (c) above, (iii) concerning any potential matter described in paragraph (d) above; (iv) concerning any potential matter described in paragraph (e) above; or (v) negatively commenting upon the Company’s corporate strategy, business, corporate activities, board of directors or management (for the avoidance of doubt, making any factual statement about the Company’s corporate strategy, business, corporate activities, board of directors or management shall not be prohibited by this Section 3.1(g)(v))directors; or
(hxv) enter into any discussions, negotiations, agreements or understandings with any Person with respect to any of the foregoing or advise, assist or seek to persuade others to take any action with respect to challenging the validity or enforceability of any of the foregoing. Notwithstanding the foregoing, (a) [the restrictions in Sections 3.1(d), 3.1(e), 3.1(f), 3.1(g)(iii), 3.1(g)(iv), 3.1(g)(v) and 3.1(h) (to the extent it relates to any of the foregoing) shall not apply at any time that (i) the Company fails to comply in all material respects with its obligations under Article 5 hereof, which failure continues unremedied for a period of 10 business days following receipt by the Company of a written notice from the Block Sale Transferee of such failure or (ii) the Block Sale Transferee has relinquished its nomination rights pursuant to Article 5 and all Block Sale Transferee nominated directors have resigned; or (b)]5 in the event that (x) the Board of Directors determines that the Company should engage in any transaction described in Section 3.1(e)(i) or 3.1(e)(ii), the Block Sale Transferee shall be permitted to participate in such Board of Directors’ approved transaction as a shareholder on the same terms and conditions as any other shareholder of the Company, (y) the Board of Directors determines that the Company should solicit from one or more Persons or enter into discussions with one or more Persons regarding, or invites any other Person or group to make a proposal (without similarly inviting the Block Sale Transferee to make a similar proposal) with respect to an acquisition of (i) all or substantially all of the equity securities or assets of the Company or any of its Subsidiaries (by merger, tender offer or otherwise) or (ii) any material assets or businesses of the Company or any of its Subsidiaries, the Block Sale Transferee shall have the right to make a non-public competing proposal to the Board of Directors in compliance with any written procedures generally applicable to Persons making proposals provided by the Company 5 Note to form: enumerated restrictions to be removed if the Block Sale Transferee does not accept the board nomination rights. or the Board of Directors or (z) any third party that is not an Affiliate of the Block Sale Transferee makes a bona fide offer or proposal, with respect to a matter described in Section 3.1(d) or 3.1(e) above (a “Third Party Proposal”), the Block Sale Transferee (A) shall have the right to make a non-public competing proposal to the Board of Directors and may publicly announce that it has made a competing proposal to the Board of Directors so long as such public announcement does not constitute an offer or a solicitation to any recipient thereof and (B) may tender, exchange or otherwise sell or transfer its Company Common Shares (or other equity securities of the Company) to such third party in accordance with the Third Party Proposal; provided, however, that in the case of clauses (y) and (z), the Block Sale Transferee shall be prohibited from participating with, joining in a group with or providing financing to any such third party). [For the avoidance of doubt, any discussions involving the directors nominated by the Block Sale Transferee pursuant to Article 5 hereof (i) at a meeting of the Board of Directors or (ii) with management of the Company, other members of the Board of Directors or any of the Company’s advisors or representatives, in the case of clauses (i) and (ii), while acting in such directors’ capacity as members of the Board of Directors, shall not be deemed to violate any of the provisions of this Article 3.]6Section III.
Appears in 1 contract
Samples: Exchange and Standstill Agreement (Gamco Investors, Inc. Et Al)
Standstill Provisions. During the Standstill Period, unless expressly authorized in writing to do so by a majority of the members of the Board of Directors, acting through a committee of directors that qualify as “independent directors” as defined by applicable stock exchange listing rules [(which term, for this purpose, will exclude any directors nominated by the Block Sale Transferee)]1, the Block Sale Transferee An Investor shall not, and shall cause its not suffer or permit any Affiliates not or Associates of such Investor to, directly or indirectly, whether acting alone or as part of a groupin concert with others:
(a) make, or in any way participate in, directly or indirectly, any "solicitation" of "proxies" (as such terms are used in any solicitation of any proxy [(but without regard to the exclusion set forth in Rule 14a-1(l)(2)(iv) Regulation 14A promulgated under the Exchange Act from the definition of “solicitation”)]2 Act) to vote any Company Common Shares (or other equity securities of the Company) consent with respect to any matter (including, without limitation, Voting Securities of Paraxxxxxx xx any contested solicitation for way that is inconsistent with the election provisions of directors with respect to the Company), other than solicitations or acting as a participant in support of all of the Company’s nominees [including, without limitation, the nominees of the Block Sale Transferee pursuant to Article 5]3this Agreement;
(b) formunless Paraxxxxxx xxxll be in material breach of Section 9, join in or become a "participant" in any way participate "election contest" (as such terms are defined or used in a group (for Rule 14a-11 under the avoidance of doubt, the Block Sale Transferee shall not be deemed to have formed, joined in or in any way participated in a group with the Company as a result of the Block Sale Transferee’s execution of this Agreement) with respect to the Company Common Shares (or other equity securities of the Company) or deposit any Company Common Shares (or other equity securities of the CompanyExchange Act) in a voting trust or similar arrangement or subject any Company Common Shares (or other equity securities of the Company) to any voting agreement or similar arrangement, or grant any proxy with respect to any Company Common Shares (or other equity securities of the Company) (other than opposition to a designated representative Board slate of the 1 Note to form: bracketed language to be removed if Block Sale Transferee does not accept the board nomination rights. 2 Note to form: bracketed language to be removed if Block Sale Transferee does not accept the board nomination rights. 3 Note to form: bracketed language to be removed if Block Sale Transferee does not accept the board nomination rights. Company pursuant to a proxy statement of the Company), other than as contemplated Paraxxxxxx xxxinated by the Governance Agreement or the Stockholders Agreement or the transactions contemplated therebyBoard;
(c) seek initiate or propose the approval of one or more shareholder proposals with respect to call, or to request the calling of, or call a special meeting of the stockholders of the Company, or seek to make, or make, a stockholder proposal (whether pursuant to Paraxxxxxx xx described in Rule 14a-8 under the Exchange Act or otherwise) at any meeting of the stockholders of the CompanyAct, or make a request for a list of the Company’s stockholders, or[, induce or attempt to induce any other than pursuant Person to the Block Sale Transferee’s nomination rights initiate any shareholder proposal with respect to Paraxxxxxx; 6
(d) except in accordance with Article 5 Section 9 or solely in connection with the termination of this Agreement,]4 an executive employment contract, seek election of a representative to the Board of Directors, or seek to place a representative on the Board of Directors or seek the removal of any director from the Board of Directors, or otherwise acting alone, or by participating in a group, seek to control or influence the governance or policies member of the Company;
(d) effect or seek to effect (including, without limitation, by entering into any discussions, negotiations, agreements or understandings whether or not legally enforceable with any third Person), offer or propose (whether publicly or otherwise) to effect, or cause or participate in, or in any way assist or facilitate any other Person to effect or seek, offer or propose (whether publicly or otherwise) to effect or participate in any acquisition of any Company Common Shares (or other equity securities of the Company) (or Beneficial Ownership thereof) in excess of the Ownership Limitation, except in accordance with Section 2.1; provided, that, for the avoidance of doubt, the Block Sale Transferee is permitted to Transfer to an unaffiliated third party any Company Common Shares (or other equity securities of the Company) Beneficially Owned by the Block Sale Transferee, subject to the provisions of Article 8 hereof, if applicableBoard;
(e) effect or in any way that is inconsistent with the terms of this Agreement, (i) solicit, seek to effect (including, without limitation, by entering into any discussions, negotiations, agreements or understandings whether or not legally enforceable with any third Person), offer or propose (whether publicly or otherwise) to effect, negotiate with or cause or participate in, or in any way assist or facilitate provide non-public information to any other Person to effect or seek, offer or propose (whether publicly or otherwise) to effect or participate in (i) any tender offer or exchange offer, merger, acquisition, share exchange or other business combination involving the Company or any of its Subsidiarieswith respect to, (ii) make any recapitalizationstatement or proposal, restructuringwhether written or oral, liquidation, dissolution to the Board or other extraordinary transaction with any director or officer of Paraxxxxxx xxxh respect to the Company or any of its Subsidiaries or any material portion of its or their businesses, or (iii) otherwise make any public announcement or proposal whatsoever with respect to, any form of business combination transaction (with any Person) involving Paraxxxxxx xx the acquisition of any material assets or businesses of the Company or any of its Subsidiaries;
(f) publicly disclose, or cause or, in a material manner, facilitate the public disclosure (including without limitation through the filing by it of any document or report with the SEC or any other governmental agency or any disclosure to any 4 Note to form: bracketed language to be removed if Block Sale Transferee does not accept the board nomination rights. journalist, member of the media or securities analyst) of any intent, purpose, plan or proposal to obtain any waiver, or consent under, or any amendment of, any of the provisions of Section 2.1, this Section 3.1, or Article 4 (except as described in Section 4.1) or bring any action to (i) contest the validity of Section 2.1, this Section 3.1 or Article 4, or (ii) seek a release from the restrictions contained in Section 2.1, this Section 3.1 or Article 4;
(g) unless required by law, make or issue or cause to be made or issued any public disclosure, announcement or statement (including without limitation the filing of any document or report with the SEC or any other governmental agency or any disclosure to any journalist, member of the media or securities analyst) (i) in support of any solicitation described in paragraph (a) above (other than solicitations by the Company), (ii) in support of any matter described in paragraph (c) above, (iii) concerning any potential matter described in paragraph (d) above; (iv) concerning any potential matter described in paragraph (e) above; or (v) negatively commenting upon the Company’s corporate strategy, business, corporate activities, board of directors or management (for the avoidance of doubt, making any factual statement about the Company’s corporate strategy, business, corporate activities, board of directors or management shall not be prohibited by this Section 3.1(g)(v)); or
(h) enter into any discussions, negotiations, agreements or understandings with any Person with respect to any of the foregoing or advise, assist or seek to persuade others to take any action with respect to any of the foregoing. Notwithstanding the foregoing, (a) [the restrictions in Sections 3.1(d), 3.1(e), 3.1(f), 3.1(g)(iii), 3.1(g)(iv), 3.1(g)(v) and 3.1(h) (to the extent it relates to any of the foregoing) shall not apply at any time that (i) the Company fails to comply in all material respects with its obligations under Article 5 hereof, which failure continues unremedied for a period of 10 business days following receipt by the Company of a written notice from the Block Sale Transferee of such failure or (ii) the Block Sale Transferee has relinquished its nomination rights pursuant to Article 5 and all Block Sale Transferee nominated directors have resigned; or (b)]5 in the event that (x) the Board of Directors determines that the Company should engage in any transaction described in Section 3.1(e)(i) or 3.1(e)(ii), the Block Sale Transferee shall be permitted to participate in such Board of Directors’ approved transaction as a shareholder on the same terms and conditions as any other shareholder of the Company, (y) the Board of Directors determines that the Company should solicit from one or more Persons or enter into discussions with one or more Persons regarding, or invites any other Person or group to make a proposal (without similarly inviting the Block Sale Transferee to make a similar proposal) with respect to an acquisition of (i) all or substantially all substantial portion of the equity securities or assets of the Company Paraxxxxxx xx any Subsidiary of Paraxxxxxx, xxcluding a merger, consolidation, tender offer, exchange offer or liquidation of Paraxxxxxx'x xxxets, or any of its Subsidiaries (by mergerrestructuring, tender offer recapitalization or otherwise) or (ii) any material assets or businesses of the Company or any of its Subsidiaries, the Block Sale Transferee shall have the right to make a non-public competing proposal to the Board of Directors in compliance with any written procedures generally applicable to Persons making proposals provided by the Company 5 Note to form: enumerated restrictions to be removed if the Block Sale Transferee does not accept the board nomination rights. or the Board of Directors or (z) any third party that is not an Affiliate of the Block Sale Transferee makes a bona fide offer or proposal, similar transaction with respect to a matter described in Section 3.1(d) or 3.1(e) above (a “Third Party Proposal”), the Block Sale Transferee (A) shall have the right to make a non-public competing proposal to the Board Paraxxxxxx xx any material Subsidiary of Directors and may publicly announce that it has made a competing proposal to the Board of Directors so long as such public announcement does not constitute an offer or a solicitation to any recipient thereof and (B) may tender, exchange or otherwise sell or transfer its Company Common Shares (or other equity securities of the Company) to such third party in accordance with the Third Party ProposalParaxxxxxx; providedxxovided, however, that the foregoing shall not (x) apply to any discussion between or among the Investor and Paraxxxxxx xx any of their respective Affiliates, Associates, officers, employees agents or representatives or (y) in the case of clauses clause (yii) and above, be interpreted to limit the ability of the Investor, or any Shareholder Director or Transferee Director to make any such statement or proposal or to discuss any such proposal with any officer or director of or advisor to Paraxxxxxx xx advisor to the Board unless, in either case, it would reasonably be expected to require Paraxxxxxx xx make a public announcement regarding such discussion, statement or proposal;
(z)f) form, join or participate in or encourage the Block Sale Transferee shall be prohibited from participating with, joining in formation of a group Group with or providing financing respect to any Voting Securities of Paraxxxxxx, xxher than a Group consisting solely of the Investors, Paraxxxxxx xxx Affiliates and Associates of the Investors and Paraxxxxxx; xxovided, that, except in connection with a Fair Proposal in accordance with Section 6, no Investor nor Affiliates or Associates of such third party). [For investor shall in any case form, join or participate in or encourage the avoidance formation of doubtany Group of which the members, together with all of such members' respective Affiliates and Associates, will, together with the Investor and the Affiliates and Associates of the Investor, Beneficially Own 66-2/3% or more of the Total Voting Power of Paraxxxxxx;
(g) except in compliance with Section 5, deposit any discussions involving Voting Securities of Paraxxxxxx xxxo a voting trust or subject any such Voting Securities to any arrangement or agreement with respect to the directors nominated by the Block Sale Transferee pursuant to Article 5 hereof voting thereof, other than any such trust, arrangement or agreement (i) at a meeting the only parties to, or beneficiaries of, which are the Investor, Qualified Parties, Paraxxxxxx xx Affiliates and Associates of the Board of Directors Investor or Paraxxxxxx xxx (ii) the terms of which do not require or expressly permit any party thereto to act in a manner inconsistent with management this Agreement; provided that all of the CompanyVoting Securities deposited into any such trust or subjected to any arrangement or agreement, other members the parties to or beneficiaries of the Board of Directors or any of the Company’s advisors or representatives, in the case of clauses (i) and (ii), while acting in such directors’ capacity as members of the Board of Directorswhich include Qualified Parties, shall not be deemed to violate any of be Beneficially Owned by the provisions respective Investor for all purposes of this Article 3.]6Agreement; or
(h) publicly disclose any intention, plan or arrangement inconsistent with the terms of this Agreement, or make any such disclosure privately if it would reasonably be expected to require Paraxxxxxx xx make a public announcement regarding such intention, plan or arrangement.
Appears in 1 contract
Standstill Provisions. During the period (the “Standstill Period”) commencing with the execution and delivery of this Agreement and ending on the earliest to occur of (i) December 31, unless expressly authorized 2024, (ii) the date on which SRS’s Beneficial Ownership ceases to satisfy the Minimum Ownership Level set forth in writing clause (c) of Section 5 hereof and (iii) the date that is sixty (60) calendar days prior to do so by a majority of the members of the Board of DirectorsAdvance Notice Deadline, acting through a committee of directors that qualify as “independent directors” as defined by applicable stock exchange listing rules [(which term, for this purpose, will exclude any directors nominated by the Block Sale Transferee)]1, the Block Sale Transferee SRS shall not, and shall cause its Affiliates not to, directly or indirectly, acting alone or as part in any manner, take any of a group:the following actions (unless specifically permitted to do so in writing in advance by the Board):
(a) makeacquire, offer to acquire, or cause to be acquired any ownership or other interest in any way participate in Voting Securities or any solicitation Synthetic Position such that SRS would collectively have Beneficial Ownership of any proxy [more than the greater of (but without regard to the exclusion set forth in Rule 14a-1(l)(2)(ivx) under the Exchange Act from the definition of “solicitation”)]2 to vote any Company Common Shares 18,500,000 and (or other equity securities y) 44.5% of the Companyoutstanding Voting Securities (the “Independent Ownership Limit”) with respect to any matter (includingimmediately following the consummation of such transaction; provided, without limitation, any contested solicitation for the election of directors with respect to the Company), other than solicitations or acting as a participant in support of all of the Company’s nominees [including, without limitation, the nominees of the Block Sale Transferee pursuant to Article 5]3;
(b) form, join in or in any way participate in a group (that for the avoidance of doubt, the Block Sale Transferee nothing contained in this Agreement shall not be deemed to have formed, joined in or in any way participated limit the ability of SRS to acquire, offer to acquire or cause to be acquired any ownership or other interest in any Synthetic Position that (i) is not required or permitted to be settled, in whole or in part, in Voting Securities and (ii) does not grant SRS a group with right, option or obligation to own, acquire or control or direct the Company as a result voting of the Block Sale Transferee’s execution any Voting Securities upon Exercise;
(b) solicit proxies or written consents of this Agreementstockholders or conduct any other type of referendum (binding or non-binding) 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 Company Common Shares Securities Exchange Act of 1934, as amended (the “Exchange Act”)), in or assist, advise, knowingly encourage or knowingly influence any Third Party in any “solicitation” of any proxy, consent or other equity securities of authority (as such terms are defined under the Company) or deposit any Company Common Shares (or other equity securities of the Company) in a voting trust or similar arrangement or subject any Company Common Shares (or other equity securities of the CompanyExchange Act) to vote any voting agreement or similar arrangement, or grant any proxy with respect to any Company Common Shares (or other equity securities of the Company) Voting Securities (other than to a designated representative of such advice, encouragement or influence that is consistent with the 1 Note to form: bracketed language to be removed if Block Sale Transferee does not accept the board nomination rights. 2 Note to form: bracketed language to be removed if Block Sale Transferee does not accept the board nomination rights. 3 Note to form: bracketed language to be removed if Block Sale Transferee does not accept the board nomination rights. Company pursuant to a proxy statement of the CompanyBoard’s recommendation in connection with such matter), other than as contemplated by the Governance Agreement or the Stockholders Agreement or the transactions contemplated thereby;
(c) seek other than through open market or block trade brokered sale transactions where (i) the identity of the purchaser is unknown to callSRS, or to request the calling of, (ii) SRS does not directly or call a special meeting of the stockholders of the Company, or seek to make, or make, a stockholder proposal (whether pursuant to Rule 14a-8 under the Exchange Act or otherwise) at any meeting of the stockholders of the Company, or make a request for a list of the Company’s stockholders, or[, other than pursuant to the Block Sale Transferee’s nomination rights in accordance with Article 5 of this Agreement,]4 seek election of a representative to the Board of Directors, seek to place a representative on the Board of Directors or seek the removal of any director from the Board of Directors, or otherwise acting alone, or by participating in a group, seek to control indirectly select or influence the governance or policies selection of the Companypurchaser, sell, offer or agree to sell any Voting Securities of the Company to any Third Party that, to the knowledge of SRS after due inquiry, (x) has aggregate Beneficial Ownership (together with its Affiliates and Associates) of more than 9.9% of the issued and outstanding Common Stock or (y) would result in such Third Party having aggregate Beneficial Ownership (together with its Affiliates and Associates) of more than 9.9% of the issued and outstanding Common Stock;
(d) effect or seek to effect (including, without limitation, by entering into any discussions, negotiations, agreements or understandings whether or not legally enforceable with any third Person)effect, offer or propose (whether publicly or otherwise) to effect, or cause or participate in, or in any way assist assist, facilitate or facilitate encourage any other Person to effect or seek, offer or propose (whether publicly or otherwise) to effect or participate in any acquisition of any Company Common Shares (or other equity securities of the Company) (or Beneficial Ownership thereof) in excess of the Ownership Limitation, except in accordance with Section 2.1; provided, that, for the avoidance of doubt, the Block Sale Transferee is permitted to Transfer to an unaffiliated third party any Company Common Shares (or other equity securities of the Company) Beneficially Owned by the Block Sale Transferee, subject to the provisions of Article 8 hereof, if applicable;
(e) effect or seek to effect (including, without limitation, by entering into any discussions, negotiations, agreements or understandings whether or not legally enforceable with any third Person), offer or propose (whether publicly or otherwise) to effect, or cause or participate in, or in any way assist or facilitate any other Person to effect or seek, offer or propose (whether publicly or otherwise) to effect or participate in (i) any tender offer or exchange offer, merger, consolidation, acquisition, share exchange or other scheme, arrangement, business combination involving the Company or any of its Subsidiariescombination, (ii) any recapitalization, restructuringreorganization, sale or acquisition of all or a substantial portion of the Company’s assets, liquidation, dissolution or other extraordinary transaction with respect to involving the Company or any of its Subsidiaries or any material portion of its or their businesses, or (iii) any acquisition of any material assets or businesses of the Company subsidiaries or any of its Subsidiaries;
their respective securities (f) publicly discloseeach, or cause or, an “Extraordinary Transaction”); provided that nothing in a material manner, facilitate the public disclosure (including without limitation through the filing by it of any document or report with the SEC or any other governmental agency or any disclosure to any 4 Note to form: bracketed language to be removed if Block Sale Transferee does not accept the board nomination rights. journalist, member of the media or securities analyst) of any intent, purpose, plan or proposal to obtain any waiver, or consent under, or any amendment of, any of the provisions of Section 2.1, this Section 3.1, or Article 4 (except as described in Section 4.1) or bring any action to (i) contest the validity of Section 2.1, this Section 3.1 or Article 4, or (ii) seek a release from the restrictions contained in Section 2.1, this Section 3.1 or Article 4;
(g) unless required by law, make or issue or cause to be made or issued any public disclosure, announcement or statement (including without limitation the filing of any document or report with the SEC or any other governmental agency or any disclosure to any journalist, member of the media or securities analyst) (i) in support of any solicitation described in paragraph (a) above (other than solicitations by the Company), (ii) in support of any matter described in paragraph (c) above, (iii) concerning any potential matter described in paragraph (d) shall preclude or prohibit SRS (or its Affiliates) from (i) tendering into a tender or exchange offer; (ii) making a proposal providing for a Change of Control Transaction (as defined below) involving the acquisition of all of the outstanding Common Stock of the Company (a “Wholeco Transaction”) directly to the Board or a committee thereof and making filings in connection with such proposal and related discussions or negotiations under Section 13(d) of the Exchange Act and related regulations; provided, that SRS has provided notice of its intention to make such filing (together with a reasonable description of the material items to be disclosed in such filing and, if available, a draft thereof) to the Company as soon in advance as reasonably practicable; (iii) in the event the Board is no longer engaging in good faith negotiations relating to, or rejects an offer made by SRS (whether binding or non-binding), in each case, in accordance with clause (ii) above, making such offer directly to stockholders of the Company after providing notice of its intent to do so as soon in advance as reasonably practicable; or (iv) concerning engaging in discussions with Third Parties (other than a Competitor) for a period of no more than seventy-five (75) days after providing written notice to the Company (which notice may be given not more than once during any twelve (12) month period; provided that an additional notice may be given during any twelve (12) month period if the Third Party enters into a confidentiality and standstill agreement on customary terms with the Company with respect to a potential matter described Wholeco Transaction), about the possibility of partnering in paragraph the making of an offer for a Wholeco Transaction under clause (eii) aboveor, to the extent applicable, clause (iii) above and making an offer (whether binding or non-binding) contemplated by such clauses in partnership with any Person (other than a Competitor) as long as such offer to the Board under clause (ii) above is first made on or prior to the end of such 75-day period; provided, that (x) nothing in clauses (ii)–(iv) above shall be deemed to permit SRS to disclose any confidential information of the Company to any Person without the prior written consent of the Company (which consent shall not be withheld, delayed or further conditioned in the event that such Person is willing to enter into a confidentiality agreement and a standstill agreement, in each case on customary terms), (y) Sections 2(d), (f), (g), (h) and (j) shall not prevent actions (and the other subsections of Section 2 shall not be deemed to prohibit actions taken by SRS that otherwise would be prohibited by Sections 2(d), (f), (g), (h) and (j) had they applied) to the extent such actions are taken in connection with discussions and offers made in compliance with clause (iii) or (viv) negatively commenting upon the Company’s corporate strategyabove (provided, business, corporate activities, board of directors or management (that for the avoidance of doubt, making any factual statement about Section 2(a) shall continue to prohibit the Company’s corporate strategy, business, corporate activities, board acquisition of directors Voting Securities except as results solely from being deemed a “group” with another Person as a result of such discussions or management shall not be prohibited by offers or from consummating a Wholeco Transaction that otherwise complies with this Section 3.1(g)(v2(d)); or
, and (hz) enter into any discussions, negotiations, agreements or understandings exploratory discussions by SRS in response to an unsolicited initiation by another Person of discussions with any Person SRS with respect to any partnering in the making of the foregoing or advise, assist or seek to persuade others to take any action with respect to any of the foregoing. Notwithstanding the foregoing, (a) [the restrictions in Sections 3.1(d), 3.1(e), 3.1(f), 3.1(g)(iii), 3.1(g)(iv), 3.1(g)(v) and 3.1(h) (to the extent it relates to any of the foregoing) shall not apply at any time that (i) the Company fails to comply in all material respects with its obligations under Article 5 hereof, which failure continues unremedied an offer for a period of 10 business days following receipt by the Company of a written notice from the Block Sale Transferee of such failure or (ii) the Block Sale Transferee has relinquished its nomination rights pursuant to Article 5 and all Block Sale Transferee nominated directors have resigned; or (b)]5 in the event that (x) the Board of Directors determines that the Company should engage in any transaction described in Section 3.1(e)(i) or 3.1(e)(ii), the Block Sale Transferee shall be permitted to participate in such Board of Directors’ approved transaction as a shareholder on the same terms and conditions as any other shareholder of the Company, (y) the Board of Directors determines that the Company should solicit from one or more Persons or enter into discussions with one or more Persons regarding, or invites any other Person or group to make a proposal (without similarly inviting the Block Sale Transferee to make a similar proposal) with respect to an acquisition of (i) all or substantially all of the equity securities or assets of the Company or any of its Subsidiaries (by merger, tender offer or otherwise) or (ii) any material assets or businesses of the Company or any of its Subsidiaries, the Block Sale Transferee shall have the right to make a non-public competing proposal to the Board of Directors in compliance with any written procedures generally applicable to Persons making proposals provided by the Company 5 Note to form: enumerated restrictions to be removed if the Block Sale Transferee does not accept the board nomination rights. or the Board of Directors or (z) any third party that is not an Affiliate of the Block Sale Transferee makes a bona fide offer or proposal, with respect to a matter described in Section 3.1(d) or 3.1(e) above (a “Third Party Proposal”), the Block Sale Transferee (A) shall have the right to make a non-public competing proposal to the Board of Directors and may publicly announce that it has made a competing proposal to the Board of Directors so long as such public announcement does not constitute an offer or a solicitation to any recipient thereof and (B) may tender, exchange or otherwise sell or transfer its Company Common Shares (or other equity securities of the Company) to such third party in accordance with the Third Party Proposal; provided, however, that in the case of clauses (y) and (z), the Block Sale Transferee shall be prohibited from participating with, joining in a group with or providing financing to any such third party). [For the avoidance of doubt, any discussions involving the directors nominated by the Block Sale Transferee pursuant to Article 5 hereof (i) at a meeting of the Board of Directors or (ii) with management of the Company, other members of the Board of Directors or any of the Company’s advisors or representatives, in the case of clauses (i) and (ii), while acting in such directors’ capacity as members of the Board of Directors, Wholeco Transaction shall not be deemed to violate any contravene the restrictions set forth in this Section 2(d), provided that thereafter engaging in substantive discussions about the material terms of the provisions partnership and Wholeco Transaction shall either require the consent of the Board or the giving of the notice contemplated by clause (iv) above.
(e) (i) call or seek the Company or any other Person to call any meeting of stockholders, including by written consent, (ii) seek representation on, or nominate any candidate to the Board (except as expressly provided by this Article 3.]6Agreement), (iii) nominate any candidate to the board of directors of any Competitor unless such candidate is independent from SRS and SRS takes all appropriate acts to prevent such third party from providing any competitively sensitive information to SRS, (iv) seek the removal of any member of the Board or
Appears in 1 contract
Samples: Cooperation Agreement (SRS Investment Management, LLC)
Standstill Provisions. During x. Xxxxx agrees that the “Standstill Period” shall commence on the date of this Agreement and shall terminate ninety (90) days following the date on which Xxxxx ceases to serve on the Board for any reason.
x. Xxxxx agrees that, during the Standstill Period, unless expressly authorized without the prior written consent of the Board specifically expressed in writing to do so a resolution adopted by a majority of the directors of the Company who are not Xxxxx or affiliates or associates of Xxxxx or members of a “group” (within the Board meaning of DirectorsSection 13(d)(3) of the Exchange Act) in which Xxxxx or any of his affiliates or associates is a member, acting through a committee of directors that qualify as “independent directors” as defined by applicable stock exchange listing rules [(which term, for this purpose, will exclude any directors nominated by the Block Sale Transferee)]1, the Block Sale Transferee Xxxxx shall not, and shall cause its Affiliates not todirectly or indirectly:
(i) acquire, announce an intention to acquire, offer or propose to acquire, or agree to acquire, directly or indirectly, acting alone by purchase or otherwise, beneficial ownership of (A) any Common Stock or direct or indirect rights to options to acquire (through purchase, exchange, conversion or otherwise)) any Common Stock if, after giving effect to any such acquisition (or intended, offered or proposed acquisition), Xxxxx would beneficially own shares of Common Stock in excess of the Ownership Limit (as part defined in Section V.7), provided that, for purposes of calculating the number of shares beneficially owned by Xxxxx, all shares of Common Stock beneficially owned by Xxxxx shall be aggregated with, and deemed to include, all shares of Common Stock beneficially owned by Xxxxx and his affiliates and associates, or (B) any other Voting Securities (as defined in Section V.7), or direct or indirect rights to options to acquire (through purchase, exchange, conversion or otherwise) any other Voting Securities, in either case of clauses (A) or (B) other than Common Stock or other Voting Securities (I) received as a result of a group:stock dividend, stock distribution or stock split, (II) issued by the Company in connection with any reorganization or recapitalization of the Company or (III) received by Xxxxx as compensation for his services as a director of the Company;
(aii) make, solicit proxies (or written consents) or assist or participate in any way participate other way, directly or indirectly, in any solicitation of any proxy [proxies (but without regard to the exclusion set forth or written consents), or otherwise become a “participant” in a “solicitation” (as such terms are defined in Instruction 3 of Item 4 of Schedule 14A and Rule 14a-1(l)(2)(iv) 14a-1 of Regulation 14A, respectively, under the Exchange Act from Act) in opposition to the definition of “solicitation”)]2 to vote any Company Common Shares (recommendation or other equity securities proposal of the Company) with respect Board, or recommend or request or induce or attempt to induce any matter (includingother person to take any such actions, without limitationor seek to advise, encourage or influence any contested solicitation for the election of directors other person with respect to the Company)voting of (or the execution of a written consent in respect of) the Common Stock or other Voting Securities, other than solicitations or acting as execute any written consent in lieu of a participant in support of all meeting of the Company’s nominees [including, without limitation, the nominees holders of the Block Sale Transferee pursuant to Article 5]3;
(b) form, join in Common Stock or in any way participate in other Voting Securities or grant a group (for the avoidance of doubt, the Block Sale Transferee shall not be deemed to have formed, joined in or in any way participated in a group with the Company as a result of the Block Sale Transferee’s execution of this Agreement) proxy with respect to the Company voting of the Common Shares (Stock or other equity securities of the Company) or deposit any Company Common Shares (or other equity securities of the Company) in a voting trust or similar arrangement or subject any Company Common Shares (or other equity securities of the Company) Voting Securities to any voting agreement or similar arrangement, or grant any proxy with respect to any Company Common Shares (or other equity securities of the Company) (person other than to a designated representative of the 1 Note to form: bracketed language to be removed if Block Sale Transferee does not accept the board nomination rights. 2 Note to form: bracketed language to be removed if Block Sale Transferee does not accept the board nomination rights. 3 Note to form: bracketed language to be removed if Block Sale Transferee does not accept the board nomination rights. Company pursuant to a proxy statement of the Company), other than Board or persons appointed as contemplated proxies by the Governance Agreement or the Stockholders Agreement or the transactions contemplated therebyBoard;
(ciii) initiate, propose or submit one or more stockholder proposals or induce or attempt to induce any other person to initiate any stockholder proposal;
(iv) seek to call, or to request the calling call of, or call a special meeting of the stockholders of the Company, or seek to make, or make, a stockholder proposal (whether pursuant to Rule 14a-8 under the Exchange Act or otherwise) at any meeting of the stockholders of the Company’s stockholders, or make a request for a list of the Company’s stockholders;
(v) form, or[join or in any way participate in a “group” (within the meaning of Section 13(d)(3) of the Exchange Act) for the purpose of acquiring holding, voting or disposing of any securities of the Company;
(vi) vote for any nominee or nominees for election to the Board, other than pursuant to those nominated or supported by the Block Sale Transferee’s nomination rights in accordance with Article 5 of Board; provided that this Agreement,]4 seek election of a representative clause (vi) shall not restrict Xxxxx from nominating himself to the Board and voting in favor of Directorshis election to the Board;
(vii) except as specifically provided in Section II of this Agreement, seek seek, alone or in concert with others, to place a representative or other affiliate or nominee on the Board of Directors or seek the removal of any director from member of the Board or a change in the size or composition of Directorsthe Board;
(viii) deposit any Common Stock or other Voting Securities in a voting trust or enter into any other arrangement or agreement with respect to the voting thereof, except as set forth in Section III.3;
(ix) acquire or agree, offer, seek or propose to acquire, or otherwise acting alonecause to be acquired, ownership (including beneficial ownership) of any of the assets or business of the Company or any rights or options to acquire any such assets or business from any person;
(x) other than at the direction of the Board, seek, propose, or by participating in make any statement with respect to, or solicit, negotiate with, or provide any information to any person with respect to, a groupmerger, seek to consolidation, acquisition of control or influence other business combination, tender or exchange offer, purchase, sale or transfer of assets or securities, dissolution, liquidation, reorganization, recapitalization, dividend, share repurchase or similar transaction involving the governance Company, its subsidiaries or policies its business, whether or not any such transaction involves a change of control of the Company;
(dxi) effect take any action, alone or seek to effect (including, without limitation, by entering into any discussions, negotiations, agreements or understandings whether or not legally enforceable in concert with any third Person)other person, offer or propose (whether publicly or otherwise) to effectadvise, or cause or participate infinance, or in any way assist or facilitate any other Person to effect or seek, offer or propose (whether publicly or otherwise) to effect or participate in or encourage any acquisition person to take any action which is prohibited to be taken by Xxxxx or any of his affiliates or associates pursuant to this Agreement, or make any Company Common Shares (investment in or enter into any arrangement with, any other equity securities person that engages, or offers or proposes to engage in any of the Company) (or Beneficial Ownership thereof) in excess of the Ownership Limitation, except in accordance with Section 2.1; provided, that, for the avoidance of doubt, the Block Sale Transferee is permitted to Transfer to an unaffiliated third party any Company Common Shares (or other equity securities of the Company) Beneficially Owned by the Block Sale Transferee, subject to the provisions of Article 8 hereof, if applicableforegoing;
(exii) effect or seek to effect (including, without limitation, by entering into any discussions, negotiations, agreements or understandings whether or not legally enforceable with any third Person), offer or propose (whether publicly or otherwise) to effectdisclose publicly, or cause or participate in, or in any way assist or facilitate any other Person to effect or seek, offer or propose (whether publicly or otherwise) to effect or participate in (i) any tender offer or exchange offer, merger, acquisition, share exchange or other business combination involving the Company or any of its Subsidiaries, (ii) any recapitalization, restructuring, liquidation, dissolution or other extraordinary transaction with respect to the Company or any of its Subsidiaries or any material portion of its or their businesses, or (iii) any acquisition of any material assets or businesses of the Company or any of its Subsidiaries;
(f) publicly disclose, or cause or, privately in a material mannermanner that could reasonably be expected to become public, facilitate the public disclosure (including without limitation through the filing by it of any document or report with the SEC or any other governmental agency or any disclosure to any 4 Note to form: bracketed language to be removed if Block Sale Transferee does not accept the board nomination rights. journalist, member of the media or securities analyst) of any intent, purposeintention, plan or proposal to obtain any waiver, or consent under, or any amendment of, any of the provisions of Section 2.1, this Section 3.1, or Article 4 (except as described in Section 4.1) or bring any action to (i) contest the validity of Section 2.1, this Section 3.1 or Article 4, or (ii) seek a release from the restrictions contained in Section 2.1, this Section 3.1 or Article 4;
(g) unless required by law, make or issue or cause to be made or issued any public disclosure, announcement or statement (including without limitation the filing of any document or report arrangement inconsistent with the SEC or any other governmental agency or any disclosure to any journalist, member of the media or securities analyst) (i) in support of any solicitation described in paragraph (a) above (other than solicitations by the Company), (ii) in support of any matter described in paragraph (c) above, (iii) concerning any potential matter described in paragraph (d) above; (iv) concerning any potential matter described in paragraph (e) above; or (v) negatively commenting upon the Company’s corporate strategy, business, corporate activities, board of directors or management (for the avoidance of doubt, making any factual statement about the Company’s corporate strategy, business, corporate activities, board of directors or management shall not be prohibited by this Section 3.1(g)(v))foregoing; or
(hxiii) enter into any discussions, negotiations, agreements or understandings with any Person with respect to any of the foregoing or advise, assist or seek to persuade others to take any action with respect to challenging the validity or enforceability of any provisions of the foregoing. Notwithstanding the foregoing, (a) [the restrictions in Sections 3.1(d), 3.1(e), 3.1(f), 3.1(g)(iii), 3.1(g)(iv), 3.1(g)(v) and 3.1(h) (to the extent it relates to any of the foregoing) shall not apply at any time that (i) the Company fails to comply in all material respects with its obligations under Article 5 hereof, which failure continues unremedied for a period of 10 business days following receipt by the Company of a written notice from the Block Sale Transferee of such failure or (ii) the Block Sale Transferee has relinquished its nomination rights pursuant to Article 5 and all Block Sale Transferee nominated directors have resigned; or (b)]5 in the event that (x) the Board of Directors determines that the Company should engage in any transaction described in this Section 3.1(e)(i) or 3.1(e)(ii), the Block Sale Transferee shall be permitted to participate in such Board of Directors’ approved transaction as a shareholder on the same terms and conditions as any other shareholder of the Company, (y) the Board of Directors determines that the Company should solicit from one or more Persons or enter into discussions with one or more Persons regarding, or invites any other Person or group to make a proposal (without similarly inviting the Block Sale Transferee to make a similar proposal) with respect to an acquisition of (i) all or substantially all of the equity securities or assets of the Company or any of its Subsidiaries (by merger, tender offer or otherwise) or (ii) any material assets or businesses of the Company or any of its Subsidiaries, the Block Sale Transferee shall have the right to make a non-public competing proposal to the Board of Directors in compliance with any written procedures generally applicable to Persons making proposals provided by the Company 5 Note to form: enumerated restrictions to be removed if the Block Sale Transferee does not accept the board nomination rights. or the Board of Directors or (z) any third party that is not an Affiliate of the Block Sale Transferee makes a bona fide offer or proposal, with respect to a matter described in Section 3.1(d) or 3.1(e) above (a “Third Party Proposal”), the Block Sale Transferee (A) shall have the right to make a non-public competing proposal to the Board of Directors and may publicly announce that it has made a competing proposal to the Board of Directors so long as such public announcement does not constitute an offer or a solicitation to any recipient thereof and (B) may tender, exchange or otherwise sell or transfer its Company Common Shares (or other equity securities of the Company) to such third party in accordance with the Third Party ProposalIII; provided, however, that nothing in the case of clauses this Section III.1 or elsewhere in this Agreement shall (I) prohibit Xxxxx from (y) and (z), the Block Sale Transferee shall be prohibited from participating with, joining in a group with taking any action or providing financing to making any such third party). [For the avoidance of doubt, statement at any discussions involving the directors nominated by the Block Sale Transferee pursuant to Article 5 hereof (i) at a meeting of the Board or of Directors any committee thereof; or (iiz) with management making any statement to the Chief Executive Officer, the Chief Financial Officer or any director of the Company, ; (II) prohibit Xxxxx from making any statement or disclosure required under the federal securities laws or other members of the Board of Directors applicable laws or any (III) prohibit Xxxxx from exercising his duties and obligations as a director of the Company’s advisors or representatives, in the case of clauses (i) and (ii), while acting in such directors’ capacity as members of the Board of Directors, shall not be deemed to violate any of the provisions of this Article 3.]6.
Appears in 1 contract
Standstill Provisions. During (a) The FrontFour Group agrees that, from the date of this Agreement until the earlier of (i) the date that is fifteen business days prior to the deadline for the submission of shareholder nominations for the 2014 annual meeting of shareholders of the Company pursuant to the Company’s Code of Regulations or (ii) the date that is ninety days prior to the first anniversary of the 2013 Annual Meeting (the “Standstill Period”), unless expressly authorized in writing to do so by a majority neither it nor any of the members of the Board of Directors, acting through a committee of directors that qualify as “independent directors” as defined by applicable stock exchange listing rules [(which term, for this purpose, will exclude any directors nominated by the Block Sale Transferee)]1, the Block Sale Transferee shall notits Affiliates or Associates under its control or direction will, and shall it will cause each of its Affiliates and Associates under its control not to, directly or indirectly, acting alone or as part of a groupin any manner:
(ai) makeengage in any solicitation of proxies or consents or become a “participant” in a “solicitation” as such terms are defined in Regulation 14A under the Exchange Act of proxies or consents (including, without limitation, any solicitation of consents that seeks to call a special meeting of shareholders), in each case, with respect to securities of the Company;
(ii) form, join or in any way participate in any solicitation “group” (within the meaning of any proxy [(but without regard to the exclusion set forth in Rule 14a-1(l)(2)(ivSection 13(d)(3) under of the Exchange Act from the definition of “solicitation”)]2 to vote any Company Common Shares (or other equity securities of the CompanyAct) with respect to the Common Stock (other than a “group” that includes all or some of the entities or persons identified on Exhibit A and Exhibit B, but does not include any matter other entities or persons not identified on Exhibit A or Exhibit B as of the date hereof); provided, however, that nothing herein shall limit the ability of an Affiliate or Associate of either FrontFour or Quinpario to join its respective “group” following the execution of this Agreement, so long as any such Affiliate or Associate agrees to be bound by the terms and conditions of this Agreement;
(includingiii) deposit any Common Stock in any voting trust or subject any Common Stock to any arrangement or agreement with respect to the voting of any Common Stock, without limitationother than any such voting trust, arrangement or agreement solely among the members of the FrontFour Group and otherwise in accordance with this Agreement;
(iv) seek or encourage any person to submit nominations in furtherance of a “contested solicitation solicitation” for the election or removal of directors with respect to the Company)Company or seek, encourage or take any other than solicitations action with respect to the election or acting as a participant in support removal of all any directors;
(A) make any proposal for consideration by shareholders at any annual or special meeting of shareholders of the Company’s nominees [including, (B) make any offer or proposal (with or without limitation, the nominees of the Block Sale Transferee pursuant to Article 5]3;
(b) form, join in or in any way participate in a group (for the avoidance of doubt, the Block Sale Transferee shall not be deemed to have formed, joined in or in any way participated in a group with the Company as a result of the Block Sale Transferee’s execution of this Agreementconditions) with respect to the Company Common Shares (a merger, acquisition, recapitalization, restructuring, disposition or other equity securities business combination involving either or both of the Company) or deposit any Company Common Shares (or other equity securities of the Company) in a voting trust or similar arrangement or subject any Company Common Shares (or other equity securities of the Company) to any voting agreement or similar arrangement, or grant any proxy with respect to any Company Common Shares (or other equity securities of the Company) (other than to a designated representative of the 1 Note to form: bracketed language to be removed if Block Sale Transferee does not accept the board nomination rights. 2 Note to form: bracketed language to be removed if Block Sale Transferee does not accept the board nomination rights. 3 Note to form: bracketed language to be removed if Block Sale Transferee does not accept the board nomination rights. Company pursuant to a proxy statement of the Company), other than as contemplated by the Governance Agreement or the Stockholders Agreement or the transactions contemplated thereby;
(c) seek to call, or to request the calling of, or call a special meeting of the stockholders of FrontFour Group and the Company, or seek to makeencourage, initiate or support any third party in any such activity, or make, a stockholder proposal (whether pursuant C) make any public communication in opposition to Rule 14a-8 under any Company acquisition or disposition activity approved by the Exchange Act or otherwise) at any meeting of the stockholders of the Company, or make a request for a list of the Company’s stockholders, or[, other than pursuant to the Block Sale Transferee’s nomination rights in accordance with Article 5 of this Agreement,]4 seek election of a representative to the Board of Directors, seek to place a representative on the Board of Directors or seek the removal of any director from the Board of Directors, or otherwise acting alone, or by participating in a group, seek to control or influence the governance or policies of the CompanyBoard;
(dvi) effect seek, alone or in concert with others, representation on the Board, except as specifically contemplated in Section 1;
(vii) seek to effect (includingadvise, without limitationencourage, by entering into support or influence any discussions, negotiations, agreements person with respect to the voting or understandings whether or not legally enforceable with any third Person), offer or propose (whether publicly or otherwise) to effect, or cause or participate in, or in any way assist or facilitate any other Person to effect or seek, offer or propose (whether publicly or otherwise) to effect or participate in any acquisition disposition of any Company Common Shares (or other equity securities of the Company) (Company at any annual or Beneficial Ownership thereof) in excess special meeting of the Ownership Limitationshareholders, except in accordance with Section 2.11; providedor
(viii) make any request or submit any proposal to amend the terms of this Agreement other than through non-public communications with the Company that would not be reasonably determined to trigger public disclosure obligations for any Party.
(b) Except as expressly provided in Section 1 or Section 2(a), thateach member of the FrontFour Group shall be entitled to:
(i) vote its shares on any other proposal duly brought before the 2013 Annual Meeting, for or otherwise vote as each member of the avoidance of doubtFrontFour Group determines in its sole discretion; or
(ii) disclose, the Block Sale Transferee is permitted publicly or otherwise, how it intends to Transfer vote or act with respect to an unaffiliated third party any Company Common Shares (or other equity securities of the Company) Beneficially Owned , any shareholder proposal or other matter to be voted on by the Block Sale Transfereeshareholders of the Company and the reasons therefor; provided that, subject to as applicable, all such activity is in compliance with the provisions requirements of Article 8 hereof, if applicable;this Agreement.
(ec) effect Notwithstanding any other provision of this Agreement, each of the New Appointees, acting solely in his capacity as a director, shall be entitled to publicly disclose his views as a director if he disagrees with a publicly announced position or seek decision of the Board in response to effect (including, without limitation, by entering into any discussions, negotiations, agreements or understandings whether or not legally enforceable with any unsolicited proposal from a third Person), offer or propose (whether publicly or otherwise) to effectparty, or cause or participate ina proposal by the Company, or in any way assist or facilitate any other Person with respect to effect or seek, offer or propose (whether publicly or otherwise) to effect or participate in (i) any tender offer or exchange offer, a merger, acquisition, share exchange recapitalization, restructuring, disposition or other business combination involving the Company or any of its Subsidiaries, (ii) any recapitalization, restructuring, liquidation, dissolution or other extraordinary transaction with respect to the Company or any of its Subsidiaries or any material portion of its or their businesses, or (iii) any acquisition of any material assets or businesses of the Company or any of its Subsidiaries;
(f) publicly disclose, or cause or, in a material manner, facilitate the public disclosure (including without limitation through the filing by it of any document or report with the SEC or any other governmental agency or any disclosure to any 4 Note to form: bracketed language to be removed if Block Sale Transferee does not accept the board nomination rights. journalist, member of the media or securities analyst) of any intent, purpose, plan or proposal to obtain any waiver, or consent under, or any amendment of, any of the provisions of Section 2.1, this Section 3.1, or Article 4 (except as described in Section 4.1) or bring any action to (i) contest the validity of Section 2.1, this Section 3.1 or Article 4, or (ii) seek a release from the restrictions contained in Section 2.1, this Section 3.1 or Article 4;
(g) unless required by law, make or issue or cause to be made or issued any public disclosure, announcement or statement (including without limitation the filing of any document or report with the SEC or any other governmental agency or any disclosure to any journalist, member of the media or securities analyst) (i) in support of any solicitation described in paragraph (a) above (other than solicitations by the Company), (ii) in support of any matter described in paragraph (c) above, (iii) concerning any potential matter described in paragraph (d) above; (iv) concerning any potential matter described in paragraph (e) above; or (v) negatively commenting upon the Company’s corporate strategy, business, corporate activities, board of directors or management (for the avoidance of doubt, making any factual statement about the Company’s corporate strategy, business, corporate activities, board of directors or management shall not be prohibited by this Section 3.1(g)(v)); or
(h) enter into any discussions, negotiations, agreements or understandings with any Person with respect to any of the foregoing or advise, assist or seek to persuade others to take any action with respect to any of the foregoing. Notwithstanding the foregoing, (a) [the restrictions in Sections 3.1(d), 3.1(e), 3.1(f), 3.1(g)(iii), 3.1(g)(iv), 3.1(g)(v) and 3.1(h) (to the extent it relates to any of the foregoing) shall not apply at any time that (i) the Company fails to comply in all material respects with its obligations under Article 5 hereof, which failure continues unremedied for a period of 10 business days following receipt by the Company of a written notice from the Block Sale Transferee of such failure or (ii) the Block Sale Transferee has relinquished its nomination rights pursuant to Article 5 and all Block Sale Transferee nominated directors have resigned; or (b)]5 in the event that (x) the Board of Directors determines that the Company should engage in any transaction described in Section 3.1(e)(i) or 3.1(e)(ii), the Block Sale Transferee shall be permitted to participate in such Board of Directors’ approved transaction as a shareholder on the same terms and conditions as any other shareholder of the Company, (y) the Board of Directors determines that the Company should solicit from one or more Persons or enter into discussions with one or more Persons regarding, or invites any other Person or group to make a proposal (without similarly inviting the Block Sale Transferee to make a similar proposal) with respect to an acquisition of (i) all or substantially all of the equity securities or assets of the Company or any of its Subsidiaries (by merger, tender offer or otherwise) or (ii) any material assets or businesses of the Company or any of its Subsidiaries, the Block Sale Transferee shall have the right to make a non-public competing proposal to the Board of Directors in compliance with any written procedures generally applicable to Persons making proposals provided by the Company 5 Note to form: enumerated restrictions to be removed if the Block Sale Transferee does not accept the board nomination rights. or the Board of Directors or (z) any third party that is not an Affiliate of the Block Sale Transferee makes a bona fide offer or proposal, with respect to a matter described in Section 3.1(d) or 3.1(e) above (a “Third Party Proposal”), the Block Sale Transferee (A) shall have the right to make a non-public competing proposal to the Board of Directors and may publicly announce that it has made a competing proposal to the Board of Directors so long as such public announcement does not constitute an offer or a solicitation to any recipient thereof and (B) may tender, exchange or otherwise sell or transfer its Company Common Shares (or other equity securities of the Company) to such third party in accordance with the Third Party Proposal; provided, however, that any such public disclosure shall consist solely of the fact that the director disagreed with such position or decision and the basis for such disagreement; provided, further, that in the case of clauses (y) and (z)connection with any such public statement, the Block Sale Transferee no director shall be prohibited from participating withpermitted to disclose any information that is confidential, joining subject to the attorney-client privilege or otherwise is material and non-public and in a group no event may any New Appointee make any public disclosure that is inconsistent with or providing financing to any such third party). [For the avoidance of doubt, any discussions involving the directors nominated by the Block Sale Transferee pursuant to Article 5 hereof (i) at a meeting of the Board of Directors or (ii) with management of the Company, other members of the Board of Directors or any of the Company’s advisors or representatives, in the case of clauses (i) and (ii), while acting in such directors’ capacity as members of the Board of Directors, shall not be deemed to violate any of the provisions of this Article 3.]6his fiduciary duties.
Appears in 1 contract
Samples: Shareholder Agreement (Ferro Corp)
Standstill Provisions. During (a) Barington agrees that, from the Effective Date until the earlier of (x) the date that is 35 calendar days before the deadline for the submission of shareholder nominations for the 2017 Annual Meeting pursuant to the Company’s Amended and Restated Code of Regulations or (y) the date that is 65 calendar days prior to the first anniversary of the date on which the Company first mailed its proxy materials for the 2016 Annual Meeting (“Standstill Period”), unless expressly authorized in writing to do so by a majority neither Barington nor any of the members of the Board of Directors, acting through a committee of directors that qualify as “independent directors” as defined by applicable stock exchange listing rules [(which term, for this purpose, will exclude any directors nominated by the Block Sale Transferee)]1, the Block Sale Transferee shall notits Affiliates or Associates under its Control will, and shall Barington will cause its Affiliates each such Controlled Affiliate and Associate not to, directly or indirectly, acting alone or as part of a groupin any manner:
(ai) makeengage in any solicitation of proxies or consents or become a “participant” in a “solicitation” (as such terms are defined in Regulation 14A under the Exchange Act) of proxies or consents (including, without limitation, any solicitation of consents that seeks to call a special meeting of shareholders), in each case, with respect to the securities of the Company;
(ii) form, join or in any way participate in any solicitation “group” (within the meaning of Section 13(d)(3) of the Exchange Act), with respect to the securities of the Company (other than a “group” that consists exclusively of the persons identified on Exhibit A for purposes consistent with this Agreement), except that nothing in this Agreement will limit the ability of an Affiliate or Associate of Barington to join the Barington “group” following the execution of this Agreement so long as any such Affiliate or Associate agrees to be bound by the terms and conditions of this Agreement;
(iii) deposit any securities of the Company in any voting trust or subject any securities of the Company to any arrangement or agreement with respect to the voting of any proxy [(but without regard to the exclusion set forth in Rule 14a-1(l)(2)(iv) under the Exchange Act from the definition of “solicitation”)]2 to vote any Company Common Shares (or other equity securities of the Company, other than any such voting trust, arrangement or agreement solely among the Barington Members and otherwise in accordance with this Agreement;
(iv) with respect to initiate, encourage or participate in any matter (including, without limitation, any A) nominations in furtherance of a “contested solicitation solicitation” for the election or removal of directors with respect to the Company), (B) other than solicitations or acting as a participant in support of all of the Company’s nominees [including, without limitation, the nominees of the Block Sale Transferee pursuant to Article 5]3;
(b) form, join in or in any way participate in a group (for the avoidance of doubt, the Block Sale Transferee shall not be deemed to have formed, joined in or in any way participated in a group with the Company as a result of the Block Sale Transferee’s execution of this Agreement) action with respect to the Company Common Shares (election or other equity securities removal of the Company) or deposit any Company Common Shares (or other equity securities of the Company) in a voting trust or similar arrangement or subject any Company Common Shares (or other equity securities of the Company) to any voting agreement or similar arrangement, or grant any proxy with respect to any Company Common Shares (or other equity securities of the Company) (other than to a designated representative of the 1 Note to form: bracketed language to be removed if Block Sale Transferee does not accept the board nomination rights. 2 Note to form: bracketed language to be removed if Block Sale Transferee does not accept the board nomination rights. 3 Note to form: bracketed language to be removed if Block Sale Transferee does not accept the board nomination rights. Company pursuant to a proxy statement of the Company), other than as contemplated by the Governance Agreement or the Stockholders Agreement or the transactions contemplated thereby;
(c) seek to call, or to request the calling of, or call a special meeting of the stockholders directors of the Company, or seek (C) effort, alone or in concert with others, to makeobtain representation on the Board, in each case except as specifically contemplated in Section 1;
(v) initiate, encourage or participate in any proposal or other business for consideration by shareholders at, or makein any “withhold” or similar campaign with respect to, a stockholder proposal (whether pursuant to Rule 14a-8 under the Exchange Act any annual or otherwise) at any special meeting of the stockholders of the Company, or make a request for a list of the Company’s stockholders, or[, other than pursuant to the Block Sale Transferee’s nomination rights in accordance with Article 5 of this Agreement,]4 seek election of a representative to the Board of Directors, seek to place a representative on the Board of Directors or seek the removal of any director from the Board of Directors, or otherwise acting alone, or by participating in a group, seek to control or influence the governance or policies shareholders of the Company;
(dvi) effect or seek to effect (includinginitiate, without limitation, by entering into any discussions, negotiations, agreements or understandings whether or not legally enforceable with any third Person), offer or propose (whether publicly or otherwise) to effect, or cause or participate in, or in any way assist or facilitate any other Person to effect or seek, offer or propose (whether publicly or otherwise) to effect encourage or participate in any acquisition of any Company Common Shares (or other equity securities of the Company) (or Beneficial Ownership thereof) in excess of the Ownership Limitation, except in accordance with Section 2.1; provided, that, for the avoidance of doubt, the Block Sale Transferee is permitted to Transfer to an unaffiliated third party any Company Common Shares (or other equity securities of the Company) Beneficially Owned by the Block Sale Transferee, subject to the provisions of Article 8 hereof, if applicable;
(e) effect or seek to effect (including, without limitation, by entering into any discussions, negotiations, agreements or understandings whether or not legally enforceable with any third Person), offer or propose proposal (whether publicly with or otherwisewithout conditions) with respect to effect, or cause or participate in, or in any way assist or facilitate any other Person to effect or seek, offer or propose (whether publicly or otherwise) to effect or participate in (i) any tender offer or exchange offer, a merger, acquisition, share exchange or other business combination involving the Company or any of its Subsidiaries, (ii) any recapitalization, restructuring, liquidation, dissolution disposition or other extraordinary transaction involving the Company;
(vii) make any public communication in opposition to any Company acquisition, recapitalization, restructuring or disposition activity approved by the Board and not submitted to be voted on by the shareholders of the Company;
(viii) seek to advise, encourage, support or influence any person with respect to the Company voting or any of its Subsidiaries or any material portion of its or their businesses, or (iii) any acquisition disposition of any material assets or businesses securities of the Company at any annual or any special meeting of its Subsidiariesshareholders;
(fix) publicly discloseinitiate, encourage or cause or, participate in a material manner, facilitate any request or submit any proposal to amend or waive the terms of this Agreement other than through non-public communications with the Company that would not trigger public disclosure (including without limitation through the filing by it of obligations for any document or report with the SEC or any other governmental agency or any disclosure to any 4 Note to form: bracketed language to be removed if Block Sale Transferee does not accept the board nomination rights. journalist, member of the media or securities analyst) of any intent, purpose, plan or proposal to obtain any waiver, or consent under, or any amendment of, any of the provisions of Section 2.1, this Section 3.1, or Article 4 (except as described in Section 4.1) or bring any action to (i) contest the validity of Section 2.1, this Section 3.1 or Article 4, or (ii) seek a release from the restrictions contained in Section 2.1, this Section 3.1 or Article 4;
(g) unless required by law, make or issue or cause to be made or issued any public disclosure, announcement or statement (including without limitation the filing of any document or report with the SEC or any other governmental agency or any disclosure to any journalist, member of the media or securities analyst) (i) in support of any solicitation described in paragraph (a) above (other than solicitations by the Company), (ii) in support of any matter described in paragraph (c) above, (iii) concerning any potential matter described in paragraph (d) above; (iv) concerning any potential matter described in paragraph (e) above; or (v) negatively commenting upon the Company’s corporate strategy, business, corporate activities, board of directors or management (for the avoidance of doubt, making any factual statement about the Company’s corporate strategy, business, corporate activities, board of directors or management shall not be prohibited by this Section 3.1(g)(v))Party; or
(hx) enter into publicly or privately encourage or support any discussions, negotiations, agreements other shareholder or understandings with any Person with respect third party to take any of the foregoing or advise, assist or seek to persuade others to take any action with respect to any of the foregoing. Notwithstanding the foregoing, actions described in this Section 2(a).
(ab) [the restrictions Nothing contained in Sections 3.1(d), 3.1(e), 3.1(f), 3.1(g)(iii), 3.1(g)(iv), 3.1(g)(v) and 3.1(h) (to the extent it relates to any of the foregoing) this Agreement shall not apply at any time that (i) the Company fails to comply in all material respects with its obligations under Article 5 hereof, which failure continues unremedied for a period of 10 business days following receipt by the Company of a written notice from the Block Sale Transferee of such failure or (ii) the Block Sale Transferee has relinquished its nomination rights pursuant to Article 5 and all Block Sale Transferee nominated directors have resigned; or (b)]5 in the event that (x) the Board of Directors determines that the Company should engage limit in any transaction described in Section 3.1(e)(i) or 3.1(e)(ii), respect the Block Sale Transferee shall be permitted ability of each of Xxxxxxxxxxx and Xxxxx to participate in such Board of Directors’ approved transaction as a shareholder on the same terms and conditions as any other shareholder of the Company, (y) the Board of Directors determines that the Company should solicit from one or more Persons or enter into discussions with one or more Persons regarding, or invites any other Person or group to make a proposal (without similarly inviting the Block Sale Transferee to make a similar proposal) with respect to an acquisition of (i) all or substantially all of the equity securities or assets of the Company or any of its Subsidiaries (by merger, tender offer or otherwise) or (ii) any material assets or businesses of the Company or any of its Subsidiaries, the Block Sale Transferee shall have the right to make a non-public competing proposal to the Board of Directors in compliance with any written procedures generally applicable to Persons making proposals provided by the Company 5 Note to form: enumerated restrictions to be removed if the Block Sale Transferee does not accept the board nomination rights. or the Board of Directors or (z) any third party that is not an Affiliate of the Block Sale Transferee makes a bona fide offer or proposal, with respect to a matter described in Section 3.1(d) or 3.1(e) above (a “Third Party Proposal”), the Block Sale Transferee (A) shall have the right to make a non-public competing proposal to the Board of Directors and may publicly announce that it has made a competing proposal to the Board of Directors so long as such public announcement does not constitute an offer or a solicitation to any recipient thereof and (B) may tender, exchange or otherwise sell or transfer its Company Common Shares (or other equity securities of the Company) to such third party act in accordance with his fiduciary duties, as a director, to the Third Party ProposalCompany and its shareholders; provided, however, that before so acting in a manner that would otherwise be a breach of this Agreement, he shall consult, to the case of clauses (y) and (z)extent reasonably practicable, with the Chairman, the Block Sale Transferee shall Presiding Director, the Chair of either Committee or the full Board.
(c) Each Barington Member will be prohibited from participating with, joining in a group with or providing financing to any such third party). [For the avoidance of doubt, any discussions involving the directors nominated by the Block Sale Transferee pursuant to Article 5 hereof entitled to:
(i) at a meeting vote its shares on any other proposal duly brought before the 2015 Annual Meeting or otherwise vote, in each case except as expressly provided in Section 1(d), Section 1(e) or Section 2(a)(iv), as each Barington Member determines in its sole discretion so long as Barington Companies Equity Partners, L.P. and all other Controlled Affiliates of Barington Capital Group, L.P. vote their shares in the Board of Directors or same manner; and
(ii) disclose, publicly or otherwise, (A) how it intends to vote with management respect to any securities of the Company, other members of the Board of Directors any shareholder proposal or any other matter to be voted on by the shareholders of the Company’s advisors , (B) how it intends to act regarding a tender offer or representativessimilar transaction relating to any securities of the Company, in the case of clauses (i) and (ii)C) its reasons for doing so in each case, while acting so long as all such disclosure or activity is (x) in such directors’ capacity as members of compliance with the Board of Directors, shall not be deemed to violate any of the provisions requirements of this Article 3.]6Agreement and (y) consistent among Barington Companies Equity Partners, L.P. and all other Controlled Affiliates of Barington Capital Group L.P.
Appears in 1 contract
Standstill Provisions. During Until the Standstill Period, unless expressly authorized in writing to do so by a majority second anniversary of the members of the Board of DirectorsClosing, acting through a committee of directors Stockholder agrees that qualify as “independent directors” as defined by applicable stock exchange listing rules [(which term, for this purpose, Stockholder will exclude any directors nominated by the Block Sale Transferee)]1, the Block Sale Transferee shall not, and shall will cause its Stockholder Affiliates not to, directly or indirectly, acting to alone or as part with a third party, take any of a groupthe following actions:
(a) deposit (either before or after the date of the execution of this Agreement) any Security of the Company in a voting trust or subject any Security of the Company to any similar arrangement or proxy with respect to the voting of such Security; or
(b) make, or in any way participate participate, directly or indirectly, in any solicitation "solicitation" of any proxy ["proxies," or become a "Participant" in a "solicitation" (but without regard to the exclusion set forth as such terms are used in Rule 14a-1(l)(2)(iv) Regulation 14A under the Exchange Act from the definition of “solicitation”)]2 Act) to seek to advise or influence any person to vote against any Company Common Shares (proposal or other equity securities director nominee recommended to the stockholders of the Company) with respect to any matter (including, without limitation, any contested solicitation for the election of directors with respect to the Company), other than solicitations or acting as a participant in support of all of the Company’s nominees [including, without limitation, the nominees of the Block Sale Transferee pursuant to Article 5]3;; or
(bc) form, join in or in any way participate in a group (for the avoidance of doubt, the Block Sale Transferee shall not be deemed to have formed, joined in or in any way participated in a group with the Company as a result of the Block Sale Transferee’s execution of this Agreement) with respect to the Company Common Shares (or other equity securities of the Company) or deposit any Company Common Shares (or other equity securities of the Company) in a voting trust or similar arrangement or subject any Company Common Shares (or other equity securities of the Company) to any voting agreement or similar arrangement, or grant any proxy 13D Group with respect to any Security of the Company Common Shares or any Securities of its subsidiaries; or
(d) 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 equity securities of business combination transaction relating to the Company) (other than to a designated representative of the 1 Note to form: bracketed language to be removed if Block Sale Transferee does not accept the board nomination rights. 2 Note to form: bracketed language to be removed if Block Sale Transferee does not accept the board nomination rights. 3 Note to form: bracketed language to be removed if Block Sale Transferee does not accept the board nomination rights. Company pursuant to a proxy statement of the Company), other than as contemplated by the Governance Agreement or the Stockholders Agreement or the transactions contemplated thereby;; or
(ce) seek to call, or to request the calling of, or call initiate a special meeting of the stockholders of the Company, or seek to make, or make, a stockholder proposal (whether pursuant to "proposal," as such term is used in Rule 14a-8 under the Exchange Act Act, "propose," or otherwise) at any meeting of otherwise solicit the stockholders of the Companyapproval of, one or make a request more Stockholders for a list of the Company’s stockholders, "proposal" or induce or attempt to induce any other person to initiate a "proposal"; or[, other than pursuant
(f) otherwise act to the Block Sale Transferee’s nomination rights in accordance with Article 5 of this Agreement,]4 seek election of a representative to the Board of Directors, seek to place a representative on the Board of Directors or seek the removal of any director from the Board of Directors, or otherwise acting alone, or by participating in a group, seek to control or influence the governance management, the Board or the policies of the Company;
(d) effect or seek Company other than pursuant to effect (including, without limitation, by entering into any discussions, negotiations, agreements or understandings whether or not legally enforceable with any third Person), offer or propose (whether publicly or otherwise) its right to effect, or cause or participate in, or in any way assist or facilitate any other Person nominate directors pursuant to effect or seek, offer or propose (whether publicly or otherwise) to effect or participate in any acquisition of any Company Common Shares (or other equity securities of the Company) (or Beneficial Ownership thereof) in excess of the Ownership Limitation, except in accordance with Section 2.1Article III hereof; provided, that, for the avoidance of doubt, the Block Sale Transferee is permitted to Transfer to an unaffiliated third party any Company Common Shares (or other equity securities of the Company) Beneficially Owned by the Block Sale Transferee, subject to the provisions of Article 8 hereof, if applicable;
(e) effect or seek to effect (including, without limitation, by entering into any discussions, negotiations, agreements or understandings whether or not legally enforceable with any third Person), offer or propose (whether publicly or otherwise) to effect, or cause or participate in, or in any way assist or facilitate any other Person to effect or seek, offer or propose (whether publicly or otherwise) to effect or participate in (i) any tender offer or exchange offer, merger, acquisition, share exchange or other business combination involving the Company or any of its Subsidiaries, (ii) any recapitalization, restructuring, liquidation, dissolution or other extraordinary transaction with respect to the Company or any of its Subsidiaries or any material portion of its or their businesses, or (iii) any acquisition of any material assets or businesses of the Company or any of its Subsidiaries;
(f) publicly disclose, or cause or, in a material manner, facilitate the public disclosure (including without limitation through the filing by it of any document or report with the SEC or any other governmental agency or any disclosure to any 4 Note to form: bracketed language to be removed if Block Sale Transferee does not accept the board nomination rights. journalist, member of the media or securities analyst) of any intent, purpose, plan or proposal to obtain any waiver, or consent under, or any amendment of, any of the provisions of Section 2.1, this Section 3.1, or Article 4 (except as described in Section 4.1) or bring any action to (i) contest the validity of Section 2.1, this Section 3.1 or Article 4, or (ii) seek a release from the restrictions contained in Section 2.1, this Section 3.1 or Article 4;
(g) unless required by law, make take any other action to seek or issue or cause to be made or issued any public disclosure, announcement or statement (including without limitation effect control of the filing of any document or report Company other than in a manner consistent with the SEC terms of this Agreement or; (h) make a public request to the Company (or its directors, officers, Stockholders, employees or agents) to take any other governmental agency or any disclosure to any journalist, member action in respect of the media or securities analyst) (i) in support of any solicitation described in paragraph (a) above (other than solicitations by the Company), (ii) in support of any matter described in paragraph (c) above, (iii) concerning any potential matter described in paragraph (d) above; (iv) concerning any potential matter described in paragraph (e) above; or (v) negatively commenting upon the Company’s corporate strategy, business, corporate activities, board of directors or management (for the avoidance of doubt, making any factual statement about the Company’s corporate strategy, business, corporate activities, board of directors or management shall not be prohibited by this Section 3.1(g)(v))foregoing materials; or
(hi) enter into disclose any discussionsintention, negotiations, agreements plan or understandings arrangement inconsistent with any Person with respect to any of the foregoing or advise, assist or seek to persuade others to take any action with respect to any of the foregoing. Notwithstanding the foregoing, (a) [the restrictions in Sections 3.1(d), 3.1(e), 3.1(f), 3.1(g)(iii), 3.1(g)(iv), 3.1(g)(v) and 3.1(h) (to the extent it relates to any of the foregoing) shall not apply at any time that (i) the Company fails to comply in all material respects with its obligations under Article 5 hereof, which failure continues unremedied for a period of 10 business days following receipt by the Company of a written notice from the Block Sale Transferee of such failure or (ii) the Block Sale Transferee has relinquished its nomination rights pursuant to Article 5 and all Block Sale Transferee nominated directors have resigned; or (b)]5 in the event that (x) the Board of Directors determines that the Company should engage in any transaction described in Section 3.1(e)(i) or 3.1(e)(ii), the Block Sale Transferee shall be permitted to participate in such Board of Directors’ approved transaction as a shareholder on the same terms and conditions as any other shareholder of the Company, (y) the Board of Directors determines that the Company should solicit from one or more Persons or enter into discussions with one or more Persons regarding, or invites any other Person or group to make a proposal (without similarly inviting the Block Sale Transferee to make a similar proposal) with respect to an acquisition of (i) all or substantially all of the equity securities or assets of the Company or any of its Subsidiaries (by merger, tender offer or otherwise) or (ii) any material assets or businesses of the Company or any of its Subsidiaries, the Block Sale Transferee shall have the right to make a non-public competing proposal to the Board of Directors in compliance with any written procedures generally applicable to Persons making proposals provided by the Company 5 Note to form: enumerated restrictions to be removed if the Block Sale Transferee does not accept the board nomination rights. or the Board of Directors or (z) any third party that is not an Affiliate of the Block Sale Transferee makes a bona fide offer or proposal, with respect to a matter described in Section 3.1(d) or 3.1(e) above (a “Third Party Proposal”), the Block Sale Transferee (A) shall have the right to make a non-public competing proposal to the Board of Directors and may publicly announce that it has made a competing proposal to the Board of Directors so long as such public announcement does not constitute an offer or a solicitation to any recipient thereof and (B) may tender, exchange or otherwise sell or transfer its Company Common Shares (or other equity securities of the Company) to such third party in accordance with the Third Party Proposal; provided, however, that in the case of clauses (y) and (z), the Block Sale Transferee shall be prohibited from participating with, joining in a group with or providing financing to any such third party). [For the avoidance of doubt, any discussions involving the directors nominated by the Block Sale Transferee pursuant to Article 5 hereof (i) at a meeting of the Board of Directors or (ii) with management of the Company, other members of the Board of Directors or any of the Company’s advisors or representatives, in the case of clauses (i) and (ii), while acting in such directors’ capacity as members of the Board of Directors, shall not be deemed to violate any of the provisions of this Article 3.]6.
Appears in 1 contract
Samples: Stockholder Agreement (Scottish Annuity & Life Holdings LTD)
Standstill Provisions. During (a) Walmart agrees that from the date of this Agreement until an Walmart Standstill Termination Event (such period, the “Standstill Period”), unless expressly authorized in writing to do so by a majority without the prior written approval of the members of the Board of DirectorsBoard, acting through a committee of directors that qualify as “independent directors” as defined by applicable stock exchange listing rules [(which term, for this purpose, will exclude any directors nominated by the Block Sale Transferee)]1, the Block Sale Transferee Walmart shall not, directly or indirectly, and shall cause its Affiliates subsidiaries not to, directly or indirectly, acting alone or as part of a group:
(ai) acquire, agree to acquire, propose or offer to acquire, by purchase or otherwise, Equity Securities or Derivative Instruments or debt securities of the Company, other than:
(A) Warrant Shares acquired by Walmart in accordance with this Agreement;
(B) as a result of any stock split, stock dividend or distribution, other subdivision, reorganization, reclassification or similar capital transaction involving Equity Securities of the Company; or
(C) pursuant to and in accordance with Section 4.4(b)(i);
(ii) make, or in any way participate or engage in, any “solicitation” of “proxies” (as such terms are used in any solicitation the proxy rules of any proxy [the Commission) (but without regard whether or not relating to the exclusion set forth in Rule 14a-1(l)(2)(ivelection or removal of directors) under the Exchange Act from the definition of “solicitation”)]2 to vote any Voting Securities, or disclose how Walmart intends to vote its Warrant Shares on any contested election of directors or any contested proposal relating to an Acquisition Proposal unless such disclosure is determined by Walmart in good faith, based on the advice of its legal counsel, to be reasonably required by Applicable Law;
(iii) call, or seek to call, a meeting of the stockholders of the Company Common Shares (or other equity securities initiate any stockholder proposal for action by stockholders of the Company) with respect to any matter (including, without limitation, any contested solicitation for the election of directors with respect to the Company), other than solicitations or acting as a participant in support of all of the Company’s nominees [including, without limitation, the nominees of the Block Sale Transferee pursuant to Article 5]3;
(biv) formnominate or seek to nominate, join in directly or in indirectly, any way participate in a group (for the avoidance of doubt, the Block Sale Transferee shall not be deemed to have formed, joined in or in any way participated in a group with the Company as a result of the Block Sale Transferee’s execution of this Agreement) with respect person to the Company Common Shares Board;
(or other equity securities of the Companyv) or deposit any Company Common Shares (or other equity securities of the Company) Voting Securities in a voting trust or similar arrangement contract or agreement or subject any Company Common Shares (or other equity securities of the Company) Voting Securities to any voting agreement agreement, pooling arrangement or similar arrangement, or grant any proxy with respect to any Company Common Shares Voting Securities (or other equity securities of the Company) (in each case, other than to the Company or a designated representative Person specified by the Company in a proxy card (paper or electronic) provided to stockholders of the 1 Note to form: bracketed language to be removed if Block Sale Transferee does not accept the board nomination rights. 2 Note to form: bracketed language to be removed if Block Sale Transferee does not accept the board nomination rights. 3 Note to form: bracketed language to be removed if Block Sale Transferee does not accept the board nomination rights. Company pursuant to a proxy statement by or on behalf of the Company), other than as contemplated by the Governance Agreement or the Stockholders Agreement or the transactions contemplated thereby;
(cvi) seek make any public announcement with respect to, enter, agree to callenter, propose or offer to request the calling of, or call a special meeting of the stockholders of the Company, or seek to make, or make, a stockholder proposal (whether pursuant to Rule 14a-8 under the Exchange Act or otherwise) at any meeting of the stockholders of the Company, or make a request for a list of the Company’s stockholders, or[, other than pursuant to the Block Sale Transferee’s nomination rights in accordance with Article 5 of this Agreement,]4 seek election of a representative to the Board of Directors, seek to place a representative on the Board of Directors or seek the removal of any director from the Board of Directors, or otherwise acting alone, or by participating in a group, seek to control or influence the governance or policies of the Company;
(d) effect or seek to effect (including, without limitation, by entering enter into any discussions, negotiations, agreements or understandings whether or not legally enforceable with any third Person), offer or propose (whether publicly or otherwise) to effect, or cause or participate in, or in any way assist or facilitate any other Person to effect or seek, offer or propose (whether publicly or otherwise) to effect or participate in any acquisition of any Company Common Shares (or other equity securities of the Company) (or Beneficial Ownership thereof) in excess of the Ownership Limitation, except in accordance with Section 2.1; provided, that, for the avoidance of doubt, the Block Sale Transferee is permitted to Transfer to an unaffiliated third party any Company Common Shares (or other equity securities of the Company) Beneficially Owned by the Block Sale Transferee, subject to the provisions of Article 8 hereof, if applicable;
(e) effect or seek to effect (including, without limitation, by entering into any discussions, negotiations, agreements or understandings whether or not legally enforceable with any third Person), offer or propose (whether publicly or otherwise) to effect, or cause or participate in, or in any way assist or facilitate any other Person to effect or seek, offer or propose (whether publicly or otherwise) to effect or participate in (i) any tender offer or exchange offer, merger, acquisitionbusiness combination, share exchange or other business combination involving the Company or any of its Subsidiaries, (ii) any recapitalization, restructuring, liquidation, dissolution change in control transaction or other similar extraordinary transaction with respect to involving the Company or any of its Subsidiaries or any material portion of its or their businesses, or (iii) any acquisition of any material assets or businesses securities of the Company or any of its Subsidiariessubsidiaries, or purchase of a material portion of the assets, properties or Equity Securities of the Company, other than acquisitions of Equity Securities as follows:
(A) Warrant Shares acquired by Walmart in accordance with this Agreement;
(fB) publicly disclose, or cause or, in as a material manner, facilitate the public disclosure (including without limitation through the filing by it result of any document stock split, stock dividend or report with the SEC distribution, other subdivision, reorganization, reclassification or any other governmental agency or any disclosure to any 4 Note to form: bracketed language to be removed if Block Sale Transferee does not accept the board nomination rights. journalist, member similar capital transaction involving Equity Securities of the media or securities analyst) of any intent, purpose, plan or proposal to obtain any waiver, or consent under, or any amendment of, any of the provisions of Section 2.1, this Section 3.1, or Article 4 (except as described in Section 4.1) or bring any action to (i) contest the validity of Section 2.1, this Section 3.1 or Article 4, or (ii) seek a release from the restrictions contained in Section 2.1, this Section 3.1 or Article 4Company;
(gC) unless required pursuant to and in accordance with Section 4.4(b)(i); or
(D) Equity Securities of the Company representing less than 5% of the outstanding shares of Common Stock held by law, make a Person acquired by Walmart or issue or cause its Affiliates; provided that such Equity Securities of the Company were acquired by such acquired Person prior to it entering into an agreement with Walmart to be made acquired and not in contemplation of, or issued any public disclosurein connection with, announcement or statement (including without limitation the filing Walmart’s acquisition of any document or report such Person and Walmart agrees to dispose of those Equity Securities and to reasonably cooperate with the SEC or Company to establish a reasonable time table and other reasonable parameters for so doing so as to minimize the impact of such disposition on the trading market for the Common Stock; provided that in connection with such disposition, Walmart shall not be required to take any other governmental agency or any disclosure action that would be likely to any journalist, member adversely affect the value of the media Equity Securities.
(vii) otherwise act, alone or securities analyst) (i) in support concert with others, to seek to control or influence the management or the policies of any solicitation described in paragraph (a) above (other than solicitations by the Company), (ii) in support of any matter described in paragraph (c) above, (iii) concerning any potential matter described in paragraph (d) above; (iv) concerning any potential matter described in paragraph (e) above; or (v) negatively commenting upon the Company’s corporate strategy, business, corporate activities, board of directors or management Company (for the avoidance of doubt, making excluding any factual statement about such act to the Company’s corporate strategyextent in its capacity as a commercial counterparty, businesscustomer, corporate activitiessupplier, board of directors industry participant or management shall not be prohibited by this Section 3.1(g)(vthe like)); or;
(hviii) take any action that would reasonably be expected to require the Company to make a public announcement regarding any of the events described above;
(ix) advise or knowingly assist or knowingly encourage or enter into any discussions, negotiations, agreements or understandings arrangements with any Person other Persons in connection with the foregoing;
(x) form, join or in any way participate in a Group (other than with its subsidiary that is bound by the restrictions of this Section 5.3(a) or a Group that consists solely of Walmart and/or any of its Affiliates), with respect to any Voting Securities or otherwise in connection with any of the foregoing foregoing; or
(xi) publicly disclose any intention, plan or advise, assist or seek to persuade others to take any action proposal with respect to any of the foregoing. Notwithstanding For the foregoingavoidance of doubt, (a) [this Section 5.3 shall not prohibit Walmart from exercising any rights or taking any action under the restrictions in Sections 3.1(dPower Purchase Agreement. In addition, Walmart shall not, directly or indirectly, and shall not permit any of its subsidiaries, directly or indirectly, to, contest the validity of this Section 5.3 or, subject to Section 5.3(b), 3.1(e)seek a waiver, 3.1(f), 3.1(g)(iii), 3.1(g)(iv), 3.1(g)(v) and 3.1(hamendment or release of any provisions of this Section 5.3 (including this sentence) (whether by legal action or otherwise).
(b) Notwithstanding anything to the contrary contained herein or in any of the other Transaction Documents, including Section 5.3(a) hereof, Walmart shall not be prohibited or restricted from making and submitting to the Company and/or the Board, any Acquisition Proposal that is not intended to require the Company to disclose such proposal, or any confidential request for the Company and/or the Board to waive, amend or provide a release of any provision of this Section 5.3 (whether or not in connection with such Acquisition Proposal); provided that any such Acquisition Proposal and/or confidential request shall by its terms terminate if it is publicly disclosed or announced by Walmart (except in the event that such public disclosure is required by Applicable Law) without the prior approval of the Board. If the Company (through the Board or otherwise) shall have commenced a process to solicit Acquisition Proposals from third parties, then the Company will promptly notify Walmart of such determination and any information provided to Walmart in connection with such notice, including, without limitation, the fact that the Company has provided such notice to Walmart, shall be kept confidential by Walmart, except to the extent it relates information is permitted to any be disclosed or used by Section 5.1(d).
(c) Notwithstanding anything to the contrary herein, the provisions of the foregoing) this Section 5.3 shall not apply at any time that become void and of no further force and effect upon (i) the Company fails to comply in all material respects with its obligations under Article 5 hereof, which failure continues unremedied for a period of 10 business days following receipt public announcement by the Company that it has entered into a definitive agreement with a Person other than Walmart or any of its Affiliates for a written notice from the Block Sale Transferee of such failure transaction involving a Business Combination or (ii) the Block Sale Transferee has relinquished its nomination rights pursuant to Article 5 and all Block Sale Transferee nominated directors have resigned; or (b)]5 in the event that (x) the Board of Directors determines that the Company should engage in if any transaction described in Section 3.1(e)(i) or 3.1(e)(ii), the Block Sale Transferee shall be permitted to participate in such Board of Directors’ approved transaction as a shareholder on the same terms and conditions as any Person other shareholder of the Company, (y) the Board of Directors determines that the Company should solicit from one or more Persons or enter into discussions with one or more Persons regarding, or invites any other Person or group to make a proposal (without similarly inviting the Block Sale Transferee to make a similar proposal) with respect to an acquisition of (i) all or substantially all of the equity securities or assets of the Company than Walmart or any of its Subsidiaries (by mergerAffiliates commences a tender or exchange offer which, tender offer or otherwise) or (ii) any material assets or businesses of the Company or any of its Subsidiariesif consummated, the Block Sale Transferee shall have the right to make would constitute a non-public competing proposal to the Board of Directors in compliance with any written procedures generally applicable to Persons making proposals provided by the Company 5 Note to form: enumerated restrictions to be removed if the Block Sale Transferee does not accept the board nomination rights. or the Board of Directors or (z) any third party that is not an Affiliate of the Block Sale Transferee makes a bona fide offer or proposal, with respect to a matter described in Section 3.1(d) or 3.1(e) above (a “Third Party Proposal”), the Block Sale Transferee (A) shall have the right to make a non-public competing proposal to the Board of Directors and may publicly announce that it has made a competing proposal to the Board of Directors so long as such public announcement does not constitute an offer or a solicitation to any recipient thereof and (B) may tender, exchange or otherwise sell or transfer its Company Common Shares (or other equity securities of the Company) to such third party in accordance with the Third Party ProposalBusiness Combination; provided, however, that in the case of clauses (y) and (z), the Block Sale Transferee shall be prohibited from participating with, joining in a group with or providing financing respect to any such third party). [For the avoidance of doubt, any discussions involving the directors nominated by the Block Sale Transferee pursuant to Article 5 hereof (i) at a meeting of the Board of Directors or (ii) with management of the Company, other members of the Board of Directors or any of the Company’s advisors or representatives, in the case of clauses (i) and (ii)) of this sentence, while acting in such directors’ capacity as members of the Board of Directors, Walmart shall not be deemed to violate have materially breached any of the provisions of this Article 3.]6Section 5.3.
Appears in 1 contract
Standstill Provisions. During the Standstill Period, unless expressly authorized in writing to do so by a majority of the members of Special Committee if it exists or the Board of DirectorsDirectors of the Company (the “Company Board”) if the Special Committee no longer exists, acting through a committee of directors that qualify as “independent directors” as defined by applicable stock exchange listing rules [(which term, for this purpose, will exclude any directors nominated by the Block Sale Transferee)]1, the Block Sale Transferee Ares shall not, and shall cause its Affiliates affiliates not to, directly or indirectly, acting alone or as part of a group:
(i) Acquire, offer to acquire or agree to acquire, directly or indirectly, by purchase or otherwise, (a) makean amount of the Company’s common stock that would exceed the 20% Limitation, or (b) any other rights or interests, including without limitation, options, warrants, swaps, derivatives, convertible securities, stock appreciation rights or other rights or instruments, whether real or synthetic, that would increase the aggregate economic or voting interest of Ares and its affiliates in the Company in excess of the 20% Limitation;
(ii) Make, submit or declare any offer, proposal or indication of interest to (a) acquire a majority of the voting or other equity securities of the Company or a majority of the assets of the Company or (b) engage in any other transaction or series of related transactions that would result in a change of control of the Company (a “Control Transaction”); provided, however, that so long as Ares complies with Section 3.1(x), Ares may confidentially submit to the Special Committee if it exists or the Company Board if the Special Committee no longer exists proposals to engage in a Control Transaction;
(iii) Enter into any agreement, arrangement or understanding, or form, join or in any way participate in any solicitation group, with any other person (excluding Ares and any investment fund and investment account managed by Ares) for the purpose of any proxy [(but without regard to the exclusion set forth in Rule 14a-1(l)(2)(iv) under the Exchange Act from the definition of “solicitation”)]2 to vote any Company Common Shares (acquiring, holding, voting or other equity securities disposing of the Company) with respect ’s equity securities or to any matter (including, without limitation, any contested solicitation for the election of directors otherwise act in concert with respect to the Company), other than solicitations or acting as a participant in support of all of the Company’s nominees [including, without limitation, the nominees of the Block Sale Transferee pursuant to Article 5]3equity securities;
(biv) formMake, join in or in any way participate in a group (for the avoidance in, directly or indirectly, any solicitation of doubtproxies or shareholder written consents to vote, the Block Sale Transferee shall not be deemed or seek to have formed, joined in advise or in influence any way participated in a group with the Company as a result of the Block Sale Transferee’s execution of this Agreement) person or entity with respect to the Company Common Shares (or other equity voting of, any voting securities of the Company) Company in connection with or deposit related in any Company Common Shares (or other equity securities of the Company) in a voting trust or similar arrangement or subject any Company Common Shares (or other equity securities of the Company) way to any voting agreement or similar arrangement, or grant any proxy with respect to any Company Common Shares (or other equity securities of the Company) (other than to a designated representative of the 1 Note to form: bracketed language to be removed if Block Sale Transferee does not accept the board nomination rights. 2 Note to form: bracketed language to be removed if Block Sale Transferee does not accept the board nomination rights. 3 Note to form: bracketed language to be removed if Block Sale Transferee does not accept the board nomination rights. Company pursuant to a proxy statement of the Company), other than as contemplated by the Governance Agreement or the Stockholders Agreement or the transactions contemplated therebyControl Transaction;
(cv) seek to call, or to request the calling of, or call a special meeting of the stockholders of the Company, or seek to make, or make, a stockholder proposal (whether pursuant to Rule 14a-8 under the Exchange Act or otherwise) at any meeting of the stockholders of the Company, or make a request for a list of the Company’s stockholders, or[, other than pursuant to the Block Sale Transferee’s nomination rights in accordance with Article 5 of this Agreement,]4 seek election of a representative to the Board of Directors, seek to place a representative on the Board of Directors or seek the removal of Make any director from the Board of Directors, nomination or otherwise acting alone, or by participating in a group, seek to control or influence the governance or policies of the Company;
(d) effect or seek to effect (including, without limitation, by entering into any discussions, negotiations, agreements or understandings whether or not legally enforceable with any third Person), offer or propose (whether publicly or otherwise) to effect, or cause or participate in, or in any way assist or facilitate any other Person to effect or seek, offer or propose (whether publicly or otherwise) to effect or participate in any acquisition of any Company Common Shares (or other equity securities of the Company) (or Beneficial Ownership thereof) in excess of the Ownership Limitation, except in accordance with Section 2.1; provided, that, for the avoidance of doubt, the Block Sale Transferee is permitted to Transfer to an unaffiliated third party any Company Common Shares (or other equity securities of the Company) Beneficially Owned by the Block Sale Transferee, subject to the provisions of Article 8 hereof, if applicable;
(e) effect or seek to effect (including, without limitation, by entering into any discussions, negotiations, agreements or understandings whether or not legally enforceable with any third Person), offer or propose (whether publicly or otherwise) to effect, or cause or participate in, or in any way assist or facilitate any other Person to effect or seek, offer or propose (whether publicly or otherwise) to effect or participate in (i) any tender offer or exchange offer, merger, acquisition, share exchange or other business combination involving the Company or any of its Subsidiaries, (ii) any recapitalization, restructuring, liquidation, dissolution or other extraordinary transaction shareholder proposal with respect to the Company or any of its Subsidiaries or any material portion of its or their businesses, or (iii) any acquisition of any material assets or businesses of the Company or any of its Subsidiaries;
(f) publicly disclose, or cause or, in a material manner, facilitate the public disclosure (including without limitation through the filing by it of any document or report with the SEC or any other governmental agency or any disclosure to any 4 Note to form: bracketed language to be removed if Block Sale Transferee does not accept the board nomination rights. journalist, member of the media or securities analyst) of any intent, purpose, plan or proposal to obtain any waiver, or consent under, or any amendment of, any of the provisions of Section 2.1, this Section 3.1, or Article 4 (except as described in Section 4.1) or bring any action to (i) contest the validity of Section 2.1, this Section 3.1 or Article 4, or (ii) seek a release from the restrictions contained in Section 2.1, this Section 3.1 or Article 4;
(g) unless required by law, make or issue or cause to be made or issued any public disclosure, announcement or statement (including without limitation the filing of any document or report with the SEC or any other governmental agency or any disclosure to any journalist, member of the media or securities analyst) (i) in support of any solicitation described in paragraph (a) above (other than solicitations by the Company), (ii) in support of any matter described in paragraph (c) above, (iii) concerning any potential matter described in paragraph (d) above; (iv) concerning any potential matter described in paragraph (e) above; or (v) negatively commenting upon the Company’s corporate strategy, business, corporate activities, board of directors or management (for the avoidance of doubt, making any factual statement about the Company’s corporate strategy, business, corporate activities, board of directors or management shall not be prohibited by this Section 3.1(g)(v)); or
(h) enter into any discussions, negotiations, agreements or understandings with any Person with respect to any of the foregoing or advise, assist or seek to persuade others to take any action with respect to any of the foregoing. Notwithstanding the foregoing, (a) [the restrictions in Sections 3.1(d), 3.1(e), 3.1(f), 3.1(g)(iii), 3.1(g)(iv), 3.1(g)(v) and 3.1(h) (to the extent it relates to any of the foregoing) shall not apply at any time that (i) the Company fails to comply in all material respects with its obligations under Article 5 hereof, which failure continues unremedied for a period of 10 business days following receipt by the Company of a written notice from the Block Sale Transferee of such failure or (ii) the Block Sale Transferee has relinquished its nomination rights pursuant to Article 5 and all Block Sale Transferee nominated directors have resigned; or (b)]5 in the event that (x) the Board of Directors determines that the Company should engage in any transaction described in Section 3.1(e)(i) or 3.1(e)(ii), the Block Sale Transferee shall be permitted to participate in such Board of Directors’ approved transaction as a shareholder on the same terms and conditions as any other shareholder of the Company, (y) the Board of Directors determines that the Company should solicit from one or more Persons or enter into discussions with one or more Persons regarding, or invites any other Person or group to make a proposal (without similarly inviting the Block Sale Transferee to make a similar proposal) with respect to an acquisition of (i) all or substantially all of the equity securities or assets of the Company or any of its Subsidiaries (by merger, tender offer or otherwise) or (ii) any material assets or businesses of the Company or any of its Subsidiaries, the Block Sale Transferee shall have the right to make a non-public competing proposal to the Board of Directors in compliance with any written procedures generally applicable to Persons making proposals provided by the Company 5 Note to form: enumerated restrictions to be removed if the Block Sale Transferee does not accept the board nomination rights. or the Board of Directors or (z) any third party that is not an Affiliate of the Block Sale Transferee makes a bona fide offer or proposal, with respect to a matter described in Section 3.1(d) or 3.1(e) above (a “Third Party Proposal”), the Block Sale Transferee (A) shall have the right to make a non-public competing proposal to the Board of Directors and may publicly announce that it has made a competing proposal to the Board of Directors so long as such public announcement does not constitute an offer or a solicitation to any recipient thereof and (B) may tender, exchange or otherwise sell or transfer its Company Common Shares (or other equity securities of the Company) to such third party in accordance with the Third Party Proposal; provided, however, that in the case of clauses (y) and (zso long as Ares complies with Section 3.1(x), Ares may make non-public recommendations to the Block Sale Transferee Company’s Nominating and Corporate Governance Committee with respect to such matters; provided, further, that the Company’s Nominating and Corporate Governance Committee shall be prohibited from participating withhave no obligation to nominate or recommend any candidate requested for nomination or recommendation by Ares; provided, joining however, that the foregoing shall in no way limit Ares’s contractual right to nominate a director to the Company Board pursuant to that certain letter agreement between the Company, Ares and certain of its affiliates dated March 28, 2007;
(vi) Make, or in any way participate in, directly or indirectly, any solicitation of proxies to vote in favor of the election of any candidate for election to the Company Board nominated by any party other than the Company;
(vii) Take any of the foregoing actions in a group with manner that is hostile to and unsupported by the Special Committee if it exists or providing the Company Board if the Special Committee no longer exists;
(viii) Advise, assist, encourage or provide financing to any such third party). [For the avoidance of doubtother person or group, or join any discussions involving the directors nominated by the Block Sale Transferee pursuant group, that is undertaking or seeking to Article 5 hereof (i) at a meeting undertake any of the Board foregoing actions;
(ix) Publicly disclose any intention to take any of Directors or the foregoing actions;
(iix) with management of Take any action that would require the Company, other members of the Special Committee if it exists or the Company Board of Directors or if the Special Committee no longer exists to make any public disclosure regarding any of the foregoing actions or in response thereto; or
(xi) Publicly request the Company’s advisors , the Special Committee if it exists or representatives, in the case of clauses (i) and (ii), while acting in such directors’ capacity as members of Company Board if the Board of Directors, shall not be deemed Special Committee no longer exists to violate amend any of the provisions of this Article 3.]6foregoing provisions.
Appears in 1 contract
Samples: Standstill Agreement (Ares Corporate Opportunities Fund Lp)
Standstill Provisions. During the Standstill Period(a) Unless and until this Agreement is terminated pursuant to Section 6.2, unless expressly authorized in writing and except (i) pursuant to do so by a majority of the members of the Board of Directors, acting through a committee of directors that qualify as “independent directors” as defined by applicable stock exchange listing rules [(which term, for this purpose, will exclude any directors nominated negotiated transaction approved by the Block Sale Transferee)]1Board; or (ii) as may otherwise be approved by the Board, the Block Sale Transferee shall no Requesting Person will, and each Requesting Person will cause their respective Affiliates and Associates to not, and shall cause its Affiliates not toin any manner, directly or indirectly, acting alone or as part of a group:
(ai) make, effect, initiate, cause or participate in (1) any acquisition of Beneficial Ownership of any securities of the Company or any securities of any Subsidiary or other Affiliate or Associate of the Company (except such transfers between Requesting Persons in compliance with Section 2.2), (2) any Company Acquisition Transaction, or (3) any “solicitation” of “proxies” (as those terms are defined in Rule 14a-1 of the General Rules and Regulations under the Exchange Act) or consents with respect to any securities of the Company; provided, the parties acknowledge that (x) no Requesting Person nor any of their respective Affiliates and Associates shall be deemed to make, effect, initiate, cause or participate in any way acquisition of Beneficial Ownership under subclause (1) of this clause 2.1(i) solely by reason of engaging in any event permitted by Section 2.3; (y) no Requesting Person nor any of their respective Affiliates and Associates shall be deemed to make, effect, initiate, cause or participate in any Company Acquisition Transaction under subclause (2) of this clause 2.1(i) or any solicitation of proxies under subclause (3) of this clause 2.1(i) solely by reason of a Requesting Person or such Requesting Person’s Affiliates and Associates voting its Shares in compliance with Section 3.1(a); and (z) no Requesting Person nor any of their respective Affiliates and Associates shall be deemed to make, effect, initiate, cause or participate in any solicitation of proxies under subclause (3) of this clause 2.1(i) solely by reason of any proxy [(but without regard to solicitation of a proxy, agreement or understanding from a Requesting Person or any of such Requesting Persons Affiliates and Associates regarding the exclusion set forth in Rule 14a-1(l)(2)(iv) under the Exchange Act from the definition of “solicitation”)]2 to vote any Company Common Shares (or other equity securities voting of the CompanyBeneficially Owned Shares in compliance with Sections 3.1(a) with respect to any matter (including, without limitation, any contested solicitation for the election of directors with respect to the Companyand 3.1(b), other than solicitations or acting as a participant in support of all of the Company’s nominees [including, without limitation, the nominees of the Block Sale Transferee pursuant to Article 5]3;
(bii) form, join in or in any way participate in a group (for the avoidance of doubt, the Block Sale Transferee shall not be deemed to have formed, joined in or in any way participated in a group with the Company as a result of the Block Sale Transferee’s execution of this Agreement) with respect to the Company Common Shares (or other equity securities of the Company) or deposit any Company Common Shares (or other equity securities of the Company) in a voting trust or similar arrangement or subject any Company Common Shares (or other equity securities of the Company) to any voting agreement or similar arrangement, or grant any proxy with respect to any Company Common Shares (or other equity securities of the Company) (other than to a designated representative of the 1 Note to form: bracketed language to be removed if Block Sale Transferee does not accept the board nomination rights. 2 Note to form: bracketed language to be removed if Block Sale Transferee does not accept the board nomination rights. 3 Note to form: bracketed language to be removed if Block Sale Transferee does not accept the board nomination rights. Company pursuant to a proxy statement of the Company), other than as contemplated by the Governance Agreement or the Stockholders Agreement or the transactions contemplated thereby;
(c) seek to call, or to request the calling of, or call a special meeting of the stockholders of the Company, nominate or seek to make, or make, a stockholder proposal (whether pursuant to Rule 14a-8 under the Exchange Act or otherwise) at nominate any meeting of the stockholders of the Company, or make a request for a list of the Company’s stockholders, or[, other than pursuant to the Block Sale Transferee’s nomination rights in accordance with Article 5 of this Agreement,]4 seek election of a representative person to the Board of Directors, seek to place a representative on the Board of Directors or seek the removal of any director from the Board of Directors, or otherwise acting aloneact, alone or by participating in a groupconcert with others, to seek to control or influence the governance management, Board or policies of the Company; provided that a Requesting Person may seek privately with the Board or the Company’s Chief Executive Officer to influence the decisions made by the existing management or Board of the Company in a manner (1) that is not disclosed publicly and (2) that would not force the Company to make a public announcement regarding such influence.
(iii) take any action which might force the Company to make a public announcement regarding any of the types of matters set forth in clause (i) of this Section 2.1;
(div) effect request or seek to effect propose that the Company (includingor its directors, without limitationofficers, by entering into any discussions, negotiations, agreements employees or understandings whether or not legally enforceable with any third Personagents), directly or indirectly, amend or waive any provision of this Section 2.1, including this subsection 2.1(iv), unless such request or proposal is made privately to the Board in a manner (1) that is not disclosed publicly and (2) that would not force the Company to make a public announcement regarding such request or proposal;
(v) agree or offer to take, or encourage or propose (whether publicly or otherwise) the taking of, any action referred to effectin clauses (i), (ii), (iii) or cause (iv) of this Section 2.1;
(vi) assist, induce or participate in, or in any way assist or facilitate encourage any other Person to effect take any action referred to in clauses (i), (ii), (iii) or seek, offer (iv) of this Section 2.1; or
(vii) enter into any discussions or propose (whether publicly or otherwise) arrangements with any third party with respect to effect or participate in any acquisition the taking of any Company Common Shares action referred to in clauses (i), (ii), (iii) or other equity securities (iv) of this Section 2.1.
(b) Notwithstanding the Company) (foregoing provisions of Section 2.1(a), the Requesting Persons and their respective Affiliates and Associates may from time to time in one or more transactions acquire Beneficial Ownership thereofof additional shares of Common Stock (“Additional Beneficially Owned Shares”) in excess of the Ownership Limitation, except in accordance with Section 2.1; provided, that, for the avoidance of doubt, the Block Sale Transferee is permitted to Transfer to an unaffiliated third party any Company Common Shares (or other equity securities of the Company) Current Beneficially Owned by the Block Sale TransfereeShares, subject to the provisions of Article 8 hereof, if applicable;
(e) effect or seek to effect (including, without limitation, by entering into any discussions, negotiations, agreements or understandings whether or not legally enforceable with any third Person), offer or propose (whether publicly or otherwise) to effect, or cause or participate in, or in any way assist or facilitate any other Person to effect or seek, offer or propose (whether publicly or otherwise) to effect or participate in (i) any tender offer or exchange offer, merger, acquisition, share exchange or other business combination involving the Company or any of its Subsidiaries, (ii) any recapitalization, restructuring, liquidation, dissolution or other extraordinary transaction with respect to the Company or any of its Subsidiaries or any material portion of its or their businesses, or (iii) any acquisition of any material assets or businesses of the Company or any of its Subsidiaries;
(f) publicly disclose, or cause or, in a material manner, facilitate the public disclosure (including without limitation through the filing by it of any document or report with the SEC or any other governmental agency or any disclosure to any 4 Note to form: bracketed language to be removed if Block Sale Transferee does not accept the board nomination rights. journalist, member of the media or securities analyst) of any intent, purpose, plan or proposal to obtain any waiver, or consent under, or any amendment of, any of the provisions of Section 2.1, this Section 3.1, or Article 4 (except as described in Section 4.1) or bring any action to (i) contest the validity of Section 2.1, this Section 3.1 or Article 4, or (ii) seek a release from the restrictions contained in Section 2.1, this Section 3.1 or Article 4;
(g) unless required by law, make or issue or cause to be made or issued any public disclosure, announcement or statement (including without limitation the filing of any document or report with the SEC or any other governmental agency or any disclosure to any journalist, member of the media or securities analyst) (i) in support of any solicitation described in paragraph (a) above (other than solicitations by the Company), (ii) in support of any matter described in paragraph (c) above, (iii) concerning any potential matter described in paragraph (d) above; (iv) concerning any potential matter described in paragraph (e) above; or (v) negatively commenting upon the Company’s corporate strategy, business, corporate activities, board of directors or management (for the avoidance of doubt, making any factual statement about the Company’s corporate strategy, business, corporate activities, board of directors or management shall not be prohibited by this Section 3.1(g)(v)); or
(h) enter into any discussions, negotiations, agreements or understandings with any Person with respect to any of the foregoing or advise, assist or seek to persuade others to take any action with respect to any of the foregoing. Notwithstanding the foregoing, (a) [the restrictions in Sections 3.1(d), 3.1(e), 3.1(f), 3.1(g)(iii), 3.1(g)(iv), 3.1(g)(v) and 3.1(h) (to the extent it relates to any of the foregoing) shall not apply at any time provided that (i) the Company fails to comply in all material respects with its obligations under Article 5 hereof, which failure continues unremedied for a period collective Beneficial Ownership of 10 business days following receipt by Requesting Persons and their respective Affiliates and Associates does not exceed the Company Plan Exemption Limit at the time of a written notice from the Block Sale Transferee acquisition of such failure or Beneficial Ownership of Additional Beneficially Owned Shares; (ii) the Block Sale Transferee has relinquished its nomination rights pursuant to Article 5 Requesting Persons and all Block Sale Transferee nominated directors have resigned; or (b)]5 in the event that (x) the Board of Directors determines that the Company should engage in any transaction described in Section 3.1(e)(i) or 3.1(e)(ii), the Block Sale Transferee shall be permitted to participate in such Board of Directors’ approved transaction as a shareholder on the same terms their respective Affiliates and conditions as any other shareholder of the Company, (y) the Board of Directors determines that the Company should solicit from one or more Persons or enter into discussions with one or more Persons regarding, or invites any other Person or group to make a proposal (without similarly inviting the Block Sale Transferee to make a similar proposal) with respect to an acquisition of (i) all or substantially all of the equity securities or assets of the Company or any of its Subsidiaries (by merger, tender offer or otherwise) or (ii) any material assets or businesses of the Company or any of its Subsidiaries, the Block Sale Transferee shall have the right to make a non-public competing proposal to the Board of Directors Associates are in compliance with any written procedures generally applicable to Persons making proposals provided by the Company 5 Note to form: enumerated restrictions to be removed if the Block Sale Transferee does not accept the board nomination rights. or the Board of Directors or (z) any third party that is not an Affiliate of the Block Sale Transferee makes a bona fide offer or proposal, with respect to a matter described in Section 3.1(d) or 3.1(e) above (a “Third Party Proposal”), the Block Sale Transferee (A) shall have the right to make a non-public competing proposal to the Board of Directors and may publicly announce that it has made a competing proposal to the Board of Directors so long as such public announcement does not constitute an offer or a solicitation to any recipient thereof and (B) may tender, exchange or otherwise sell or transfer its Company Common Shares (or other equity securities of the Company) to such third party in accordance with the Third Party Proposal; provided, however, that in the case of clauses (y) and (z), the Block Sale Transferee shall be prohibited from participating with, joining in a group with or providing financing to any such third party). [For the avoidance of doubt, any discussions involving the directors nominated by the Block Sale Transferee pursuant to Article 5 hereof (i) at a meeting of the Board of Directors or (ii) with management of the Company, other members of the Board of Directors or any of the Company’s advisors or representatives, in the case of clauses (i) and (ii), while acting in such directors’ capacity as members of the Board of Directors, shall not be deemed to violate any all of the provisions of this Article 3.]6Agreement as of the acquisition date of any Additional Beneficially Owned Shares; (iii) the representations and warranties of Requesting Persons and their respective Affiliates and Associates in this Agreement shall be true, accurate and complete as if made as of the date of any such acquisition of Additional Shares; (iv) the acquisition of Additional Shares would not result in any Person who is not the Requesting Persons and their respective Affiliates and Associates, individually or collectively, constituting a Section 382 5% Shareholder; and (v) the acquisition of the Additional Beneficially Owned Shares is completed prior to the Additional Beneficially Owned Shares Acquisition Window Expiration Date. Additional Beneficially Owned Shares may not be acquired after the Additional Beneficially Owned Shares Acquisition Window Expiration Date. Any acquisition of additional shares of Common Stock by the Requesting Persons or their respective Affiliates or Associates (i) will not be made with the purpose or the effect of changing or influencing the control of the Company, and (ii) will not be made in connection with (and neither Requesting Person nor any of their respective Affiliates and Associates will be a participant in) any transaction having such purpose or effect.
(c) The Requesting Persons and their respective Affiliates and Associates shall not be required to divest shares of Common Stock solely as the result of any decrease in the number of issued and outstanding shares of Common Stock (including by reason of any reverse stock split or repurchase and retirement of shares of Common Stock), even if such change causes Requesting Persons and their respective Affiliates and Associates to Beneficially Own shares of Common Stock in excess of the Plan Exemption Limit (either individually or in the aggregate).
Appears in 1 contract
Samples: Tax Benefit Preservation Plan Exemption Agreement (AutoWeb, Inc.)
Standstill Provisions. During WW Investors agrees that, at all times from the Standstill Period, unless expressly authorized in writing to do so by date of this Agreement until the earlier of (A) such time as the WW Designee is removed as a majority of the members member of the Board and the Company fails to seat a Replacement Manager in breach of DirectorsSection 1(a), acting through (B) Winthrop REIT Advisors LLC is replaced as the Company’s advisor and (C) the later of (i) the date that is 14 months after the date hereof and (ii) such time as a committee WW Designee is no longer a member of directors that qualify as the Board (the “independent directors” as defined by applicable stock exchange listing rules [(which termStandstill Period”), for this purpose, will exclude neither it nor any directors nominated by the Block Sale Transferee)]1, the Block Sale Transferee shall notof its Affiliates or Associates shall, and it shall cause each of its Affiliates and Associates not to, directly or indirectly, acting alone or as part of a groupin any manner:
(a) make, or in any way participate engage in any solicitation of any proxy [proxies or consents or become a “participant” in a “solicitation” (but without regard to the exclusion set forth as such terms are defined in Rule 14a-1(l)(2)(iv) Regulation 14A under the Exchange Act from the definition Act) of “solicitation”)]2 to vote any Company Common Shares (proxies or other equity securities of the Company) with respect to any matter consents (including, without limitation, any contested solicitation for the election of directors consents that seeks to call a meeting of unitholders), in each case, with respect to the Company), other than solicitations or acting as a participant in support of all securities of the Company’s nominees [including, without limitation, the nominees of the Block Sale Transferee pursuant to Article 5]3;
(b) form, join in or in any way participate in a group any “group” (for within the avoidance meaning of doubt, the Block Sale Transferee shall not be deemed to have formed, joined in or in any way participated in a group with the Company as a result Section 13(d)(3) of the Block Sale Transferee’s execution of this AgreementExchange Act) with respect to the Company Common Shares (or other equity securities of the Company) or deposit any Company Common Shares (or other equity securities of the Company) in a voting trust or similar arrangement or subject any Company Common Shares (or other equity securities of the Company) to any voting agreement or similar arrangement, or grant any proxy with respect to any Company Common Shares (or other equity securities of the Company) Units (other than to a designated representative “group” that includes all or some of the 1 Note entities or persons identified on Exhibit A, but does not include any other entities or persons not identified on Exhibit A as of the date hereof); provided, however, that nothing herein shall limit the ability of an Affiliate of WW Investors to form: bracketed language join the “group” following the execution of this Agreement, so long as any such Affiliate agrees to be removed if Block Sale Transferee does not accept the board nomination rights. 2 Note to form: bracketed language to be removed if Block Sale Transferee does not accept the board nomination rights. 3 Note to form: bracketed language to be removed if Block Sale Transferee does not accept the board nomination rights. Company pursuant to a proxy statement of the Company), other than as contemplated bound by the Governance Agreement or the Stockholders Agreement or the transactions contemplated therebyterms and conditions of this Agreement;
(c) seek deposit any Units in any voting trust or subject any Units to call, any arrangement or agreement with respect to request the calling of, or call a special meeting voting of the stockholders of the Company, or seek to make, or make, a stockholder proposal (whether pursuant to Rule 14a-8 under the Exchange Act or otherwise) at any meeting of the stockholders of the Company, or make a request for a list of the Company’s stockholders, or[Units, other than pursuant to any such voting trust, arrangement or agreement solely among the Block Sale Transferee’s nomination rights members of WW Investors and otherwise in accordance with Article 5 of this Agreement,]4 seek election of a representative to the Board of Directors, seek to place a representative on the Board of Directors or seek the removal of any director from the Board of Directors, or otherwise acting alone, or by participating in a group, seek to control or influence the governance or policies of the CompanyAgreement;
(d) effect seek, or encourage any person or entity, to submit nominations in furtherance of a “contested solicitation” for the election or removal of managers with respect to the Company or seek, encourage or take any other action with respect to the election or removal of any managers;
(e) (i) make any proposal for consideration by unitholders at any meeting of unitholders of the Company, (ii) make any offer or proposal (with or without conditions) with respect to any merger, acquisition, recapitalization, restructuring, disposition, liquidation, dissolution or other business combination involving WW Investors and the Company, (iii) affirmatively solicit a third party, on an unsolicited basis, to make an offer or proposal (with or without conditions) with respect to any merger, acquisition, recapitalization, restructuring, disposition, liquidation, dissolution or other business combination involving the Company, or publicly encourage, initiate or support any third party in making such an offer or proposal, (iv) publicly comment on any third party proposal regarding any merger, acquisition, recapitalization, restructuring, disposition, liquidation, dissolution or other business combination with respect to the Company by such third party prior to such proposal becoming public, or (v) call or seek to effect call a meeting of unitholders;
(includingf) seek, without limitation, by entering into any discussions, negotiations, agreements or understandings whether or not legally enforceable with any third Person), offer or propose (whether publicly or otherwise) to effect, or cause or participate in, alone or in concert with others, representation on the Board, except as specifically permitted in Section 1;
(g) seek to advise, support, influence or knowingly encourage any way assist person or facilitate any other Person entity with respect to effect the voting or seek, offer or propose (whether publicly or otherwise) to effect or participate in any acquisition disposition of any Company Common Shares (or other equity securities of the Company) (Company at any annual or Beneficial Ownership thereof) in excess meeting of the Ownership Limitationunitholders, except in accordance with Section 2.1; provided, that, for the avoidance of doubt, the Block Sale Transferee is permitted to Transfer to an unaffiliated third party any Company Common Shares (or other equity securities of the Company) Beneficially Owned by the Block Sale Transferee, subject to the provisions of Article 8 hereof, if applicable1;
(eh) effect or seek acquire, announce an intention to effect (including, without limitation, by entering into any discussions, negotiations, agreements or understandings whether or not legally enforceable with any third Person)acquire, offer or propose (whether publicly to acquire, or agree to acquire, directly or indirectly, by purchase or otherwise) to effect, or cause or participate inbeneficial ownership of any voting units of the Company that, or together with any voting units beneficially owned thereby, represents in any way assist or facilitate any other Person to effect or seek, offer or propose (whether publicly or otherwise) to effect or participate the aggregate in excess of 4.9% of the Company’s outstanding voting units;
(i) institute any tender offer litigation against the Company, its managers or exchange offerits officers, merger, acquisition, share exchange or other business combination involving make any “books and records” demands against the Company or any of its Subsidiaries, (ii) any recapitalization, restructuring, liquidation, dissolution make application or demand to a court or other extraordinary transaction with respect to the Company person or any of its Subsidiaries entity for an inspection, investigation or any material portion of its or their businesses, or (iii) any acquisition of any material assets or businesses examination of the Company or any of its Subsidiaries;
(f) publicly disclose, subsidiaries or cause or, in a material manner, facilitate the public disclosure (including without limitation through the filing by it of any document or report with the SEC or any other governmental agency or any disclosure to any 4 Note to form: bracketed language to be removed if Block Sale Transferee does not accept the board nomination rights. journalist, member of the media or securities analyst) of any intent, purpose, plan or proposal to obtain any waiver, or consent under, or any amendment of, any of the provisions of Section 2.1, this Section 3.1, or Article 4 (except as described in Section 4.1) or bring any action to (i) contest the validity of Section 2.1, this Section 3.1 or Article 4, or (ii) seek a release from the restrictions contained in Section 2.1, this Section 3.1 or Article 4;
(g) unless required by law, make or issue or cause to be made or issued any public disclosure, announcement or statement (including without limitation the filing of any document or report with the SEC or any other governmental agency or any disclosure to any journalist, member of the media or securities analyst) (i) in support of any solicitation described in paragraph (a) above (other than solicitations by the Company), (ii) in support of any matter described in paragraph (c) above, (iii) concerning any potential matter described in paragraph (d) above; (iv) concerning any potential matter described in paragraph (e) above; or (v) negatively commenting upon the Company’s corporate strategy, business, corporate activities, board of directors or management (for the avoidance of doubt, making any factual statement about the Company’s corporate strategy, business, corporate activities, board of directors or management shall not be prohibited by this Section 3.1(g)(v)); or
(h) enter into any discussions, negotiations, agreements or understandings with any Person with respect to any of the foregoing or advise, assist or seek to persuade others to take any action with respect to any of the foregoing. Notwithstanding the foregoing, (a) [the restrictions in Sections 3.1(d), 3.1(e), 3.1(f), 3.1(g)(iii), 3.1(g)(iv), 3.1(g)(v) and 3.1(h) (to the extent it relates to any of the foregoing) shall not apply at any time that (i) the Company fails to comply in all material respects with its obligations under Article 5 hereof, which failure continues unremedied for a period of 10 business days following receipt by the Company of a written notice from the Block Sale Transferee of such failure or (ii) the Block Sale Transferee has relinquished its nomination rights pursuant to Article 5 and all Block Sale Transferee nominated directors have resigned; or (b)]5 in the event that (x) the Board of Directors determines that the Company should engage in any transaction described in Section 3.1(e)(i) or 3.1(e)(ii), the Block Sale Transferee shall be permitted to participate in such Board of Directors’ approved transaction as a shareholder on the same terms and conditions as any other shareholder of the Company, (y) the Board of Directors determines that the Company should solicit from one or more Persons or enter into discussions with one or more Persons regarding, or invites any other Person or group to make a proposal (without similarly inviting the Block Sale Transferee to make a similar proposal) with respect to an acquisition of (i) all or substantially all of the equity securities or assets of the Company or any of its Subsidiaries (by merger, tender offer or otherwise) or (ii) any material assets or businesses of the Company or any of its Subsidiaries, the Block Sale Transferee shall have the right to make a non-public competing proposal to the Board of Directors in compliance with any written procedures generally applicable to Persons making proposals provided by the Company 5 Note to form: enumerated restrictions to be removed if the Block Sale Transferee does not accept the board nomination rights. or the Board of Directors or (z) any third party that is not an Affiliate of the Block Sale Transferee makes a bona fide offer or proposal, with respect to a matter described in Section 3.1(d) or 3.1(e) above (a “Third Party Proposal”), the Block Sale Transferee (A) shall have the right to make a non-public competing proposal to the Board of Directors and may publicly announce that it has made a competing proposal to the Board of Directors so long as such public announcement does not constitute an offer or a solicitation to any recipient thereof and (B) may tender, exchange or otherwise sell or transfer its Company Common Shares (or other equity securities of the Company) to such third party in accordance with the Third Party ProposalAffiliates; provided, however, that in nothing shall prevent WW Investors from bringing litigation to enforce the case provisions of clauses this Agreement;
(yj) and (z)enter into or maintain any economic, the Block Sale Transferee shall be prohibited from participating withcompensatory, joining in a group pecuniary or other arrangements with any manager or providing financing to any such third party). [For the avoidance of doubt, any discussions involving the directors nominated by the Block Sale Transferee pursuant to Article 5 hereof (i) at a meeting of the Board of Directors or (ii) with management nominees for manager of the Company, other members than the WW Designee;
(k) make any request or submit any proposal to amend the terms of this Agreement other than through non-public communications with the Board of Directors Company that would not be reasonably determined to trigger public disclosure obligations for any Party; or
(l) enter into any negotiations, discussions, agreement, arrangement or understanding with any person or entity concerning any of the Company’s advisors foregoing (other than this Agreement) or representatives, in the case of clauses (i) and (ii), while acting in such directors’ capacity as members of the Board of Directors, shall not be deemed encourage or solicit any person or entity to violate undertake any of the provisions of this Article 3.]6foregoing activities.
Appears in 1 contract
Samples: Manager Designation Agreement (New York REIT Liquidating LLC)
Standstill Provisions. During a. Each RBM Party agrees that, from the date of this Agreement until the earliest of (x) the date that is thirty (30) calendar days prior to the deadline for the submission of shareholder nominations for the Company's 2019 Annual Meeting of Shareholders pursuant to the Company's Amended & Restated Bylaws, (y) the date that is one hundred (100) days prior to the first anniversary of the 2018 Annual Meeting and (z) such time, no earlier than immediately after the conclusion of the 2018 Annual Meeting, as no Agreed Appointee (or Replacement Director) is serving on the Board and RBM or its Designee has notified the Company in writing that they will not seek to fill such vacancy (the "Standstill Period"), unless expressly authorized in writing to do so by a majority of the members of the Board of Directors, acting through a committee of directors that qualify as “independent directors” as defined by applicable stock exchange listing rules [(which term, for this purpose, will exclude any directors nominated by the Block Sale Transferee)]1, the Block Sale Transferee each RBM Party shall not, and each RBM Party shall cause each of its controlled Affiliates and controlled Associates not to, in each case directly or indirectly, acting alone or as part of a groupin any manner:
(a) make, or in any way participate i. engage in any solicitation of any proxy [proxies or consents or become a "participant" in a "solicitation" (but without regard to the exclusion set forth as such terms are defined in Rule 14a-1(l)(2)(iv) Regulation 14A under the Exchange Act from the definition Act) of “solicitation”)]2 to vote any Company Common Shares (proxies or other equity securities of the Company) with respect to any matter consents (including, without limitation, any contested solicitation for the election of directors consents that seeks to call a special meeting of shareholders), in each case, with respect to the Company), other than solicitations or acting as a participant in support of all securities of the Company’s nominees [including, without limitation, the nominees of the Block Sale Transferee pursuant to Article 5]3;
(b) ii. form, join in or in any way knowingly participate in a group any "group" (for within the avoidance meaning of doubt, the Block Sale Transferee shall not be deemed to have formed, joined in or in any way participated in a group with the Company as a result Section 13(d)(3) of the Block Sale Transferee’s execution of this AgreementExchange Act) with respect to the Company shares of Common Shares (or other equity securities of the Company) or deposit any Company Common Shares (or other equity securities of the Company) in a voting trust or similar arrangement or subject any Company Common Shares (or other equity securities of the Company) to any voting agreement or similar arrangement, or grant any proxy with respect to any Company Common Shares (or other equity securities of the Company) Stock (other than to a designated representative of as disclosed in the 1 Note to form: bracketed language to be removed if Block Sale Transferee does not accept Schedule 13D, originally filed with the board nomination rights. 2 Note to form: bracketed language to be removed if Block Sale Transferee does not accept the board nomination rights. 3 Note to form: bracketed language to be removed if Block Sale Transferee does not accept the board nomination rights. Company pursuant to a proxy statement of the Company)Securities and Exchange Commission on December 20, other than as contemplated 2017 by the Governance Agreement or the Stockholders Agreement or the transactions contemplated thereby;
(c) seek to call, or to request the calling of, or call a special meeting of the stockholders of the Company, or seek to make, or make, a stockholder proposal (whether pursuant to Rule 14a-8 under the Exchange Act or otherwise) at any meeting of the stockholders of the Company, or make a request for a list of the Company’s stockholders, or[, other than pursuant to the Block Sale Transferee’s nomination rights in accordance with Article 5 of this Agreement,]4 seek election of a representative to the Board of Directors, seek to place a representative on the Board of Directors or seek the removal of any director from the Board of Directors, or otherwise acting alone, or by participating in a group, seek to control or influence the governance or policies of the Company;
(d) effect or seek to effect (including, without limitation, by entering into any discussions, negotiations, agreements or understandings whether or not legally enforceable with any third Person), offer or propose (whether publicly or otherwise) to effect, or cause or participate in, or in any way assist or facilitate any other Person to effect or seek, offer or propose (whether publicly or otherwise) to effect or participate in any acquisition of any Company Common Shares (or other equity securities of the Company) (or Beneficial Ownership thereof) in excess of the Ownership Limitation, except in accordance with Section 2.1; provided, thatRBM and, for the avoidance of doubt, that does not include any other entities or persons which were not party to such Schedule 13D); provided, however, that nothing herein shall limit the Block Sale Transferee is permitted ability of an Affiliate of any RBM Party to Transfer join a "group" with such RBM Party following the execution of this Agreement;
iii. deposit any shares of Common Stock in any voting trust or subject any shares of Common Stock to an unaffiliated third party any arrangement or agreement with respect to the voting of any shares of Common Stock, other than any such voting trust, arrangement or agreement solely among the members of RBM and the RBM Parties and otherwise in accordance with this Agreement;
iv. seek or submit, or knowingly encourage any person or entity to seek or submit, nomination(s) in furtherance of a "contested solicitation" for the appointment, election or removal of directors with respect to the Company Common Shares (or seek, knowingly encourage or take any other equity securities action with respect to the appointment, election or removal of any directors, in each case in opposition to the recommendation of the Board; provided, however, that nothing in this Agreement shall prevent RBM or its Affiliates or Associates from taking actions in furtherance of identifying director candidates in connection with the Company's 2019 Annual Meeting of Shareholders so long as RBM and the other RBM Parties comply with the limitations set forth in Section 1(h)(iii) Beneficially Owned by and such actions do not create a public disclosure obligation for any RBM Party or the Block Sale Transferee, subject Company and are undertaken on a basis reasonably designed to be confidential and in accordance in all material respects with RBM's normal practices in the provisions of Article 8 hereof, if applicablecircumstances;
(eA) effect make any proposal for consideration by shareholders at any annual or seek to effect special meeting of shareholders of the Company or through any referendum of shareholders, (including, without limitation, by entering into B) make any discussions, negotiations, agreements or understandings whether or not legally enforceable with any third Person), offer or propose proposal (whether publicly with or otherwisewithout conditions) with respect to effectany merger, or cause or participate inscheme of arrangement, or in any way assist or facilitate any other Person to effect or seek, offer or propose (whether publicly or otherwise) to effect or participate in (i) any tender offer or exchange takeover offer, merger, acquisition, share exchange recapitalization, restructuring, disposition or other business combination involving any RBM Party (or its Affiliates) and the Company, (C) affirmatively solicit a third party to make an offer or proposal (with or without conditions) with respect to any merger, scheme of arrangements, takeover offer, acquisition, recapitalization, restructuring, disposition or other business combination involving the Company Company, or publicly encourage, initiate or support any third party in making such an offer or proposal, or (D) call or seek to call a special meeting of its Subsidiariesshareholders;
vi. seek, (ii) alone or in concert with others, representation on the Board, except as specifically permitted in Section 1;
vii. advise, knowingly encourage, knowingly support or knowingly influence any recapitalization, restructuring, liquidation, dissolution person or other extraordinary transaction entity with respect to the Company voting or any of its Subsidiaries or any material portion of its or their businesses, or (iii) any acquisition disposition of any material assets or businesses securities of the Company at any annual or special meeting of shareholders, except in accordance with Section 1; or
viii. make any request or submit any proposal to amend the terms of its Subsidiaries;
(f) publicly disclose, or cause or, in a material manner, facilitate this Agreement other than through non-public communications with the Company that would not be reasonably determined to trigger public disclosure (including without limitation through the filing by it of obligations for any document or report with the SEC or any other governmental agency or any disclosure to any 4 Note to form: bracketed language to be removed if Block Sale Transferee does not accept the board nomination rights. journalist, member of the media or securities analyst) of any intent, purpose, plan or proposal to obtain any waiver, or consent under, or any amendment of, any of the provisions of Section 2.1, this Section 3.1, or Article 4 (except Party.
b. Except as described expressly provided in Section 4.1) 1 or bring any action Section 2(a), each RBM Party shall be entitled to (i) contest vote the validity shares of Section 2.1, this Section 3.1 or Article 4, or Common Stock that it beneficially owns as it determines in its sole discretion and (ii) seek a release from the restrictions contained in Section 2.1disclose, this Section 3.1 publicly or Article 4;
(g) unless required by lawotherwise, make how it intends to vote or issue or cause to be made or issued any public disclosure, announcement or statement (including without limitation the filing of any document or report with the SEC or any other governmental agency or any disclosure to any journalist, member of the media or securities analyst) (i) in support of any solicitation described in paragraph (a) above (other than solicitations by the Company), (ii) in support of any matter described in paragraph (c) above, (iii) concerning any potential matter described in paragraph (d) above; (iv) concerning any potential matter described in paragraph (e) above; or (v) negatively commenting upon the Company’s corporate strategy, business, corporate activities, board of directors or management (for the avoidance of doubt, making any factual statement about the Company’s corporate strategy, business, corporate activities, board of directors or management shall not be prohibited by this Section 3.1(g)(v)); or
(h) enter into any discussions, negotiations, agreements or understandings with any Person act with respect to any of the foregoing or advise, assist or seek to persuade others to take any action with respect to any of the foregoing. Notwithstanding the foregoing, (a) [the restrictions in Sections 3.1(d), 3.1(e), 3.1(f), 3.1(g)(iii), 3.1(g)(iv), 3.1(g)(v) and 3.1(h) (to the extent it relates to any of the foregoing) shall not apply at any time that (i) the Company fails to comply in all material respects with its obligations under Article 5 hereof, which failure continues unremedied for a period of 10 business days following receipt by the Company of a written notice from the Block Sale Transferee of such failure or (ii) the Block Sale Transferee has relinquished its nomination rights pursuant to Article 5 and all Block Sale Transferee nominated directors have resigned; or (b)]5 in the event that (x) the Board of Directors determines that the Company should engage in any transaction described in Section 3.1(e)(i) or 3.1(e)(ii), the Block Sale Transferee shall be permitted to participate in such Board of Directors’ approved transaction as a shareholder on the same terms and conditions as any other shareholder securities of the Company, (y) any shareholder proposal or other matter to be voted on by the Board of Directors determines that the Company should solicit from one or more Persons or enter into discussions with one or more Persons regarding, or invites any other Person or group to make a proposal (without similarly inviting the Block Sale Transferee to make a similar proposal) with respect to an acquisition of (i) all or substantially all of the equity securities or assets shareholders of the Company or any and the reasons therefor (in each case, subject to Section 1(h)(iv)).
c. Nothing in this Agreement shall be deemed to limit the exercise by an Agreed Appointee of its Subsidiaries (by merger, tender offer or otherwise) or (ii) any material assets or businesses of the Company or any of its Subsidiaries, the Block Sale Transferee shall have the right to make such person's duties solely in such person's individual capacity as a non-public competing proposal to the Board of Directors in compliance with any written procedures generally applicable to Persons making proposals provided by the Company 5 Note to form: enumerated restrictions to be removed if the Block Sale Transferee does not accept the board nomination rights. or the Board of Directors or (z) any third party that is not an Affiliate of the Block Sale Transferee makes a bona fide offer or proposal, with respect to a matter described in Section 3.1(d) or 3.1(e) above (a “Third Party Proposal”), the Block Sale Transferee (A) shall have the right to make a non-public competing proposal to the Board of Directors and may publicly announce that it has made a competing proposal to the Board of Directors so long as such public announcement does not constitute an offer or a solicitation to any recipient thereof and (B) may tender, exchange or otherwise sell or transfer its Company Common Shares (or other equity securities director of the Company) to such third party in accordance with the Third Party Proposal; provided, however, that in the case of clauses (y) and (z), the Block Sale Transferee shall be prohibited from participating with, joining in a group with or providing financing to any such third party). [For the avoidance of doubt, any discussions involving the directors nominated by the Block Sale Transferee pursuant to Article 5 hereof (i) at a meeting of the Board of Directors or (ii) with management of the Company, other members of the Board of Directors or any of the Company’s advisors or representatives, in the case of clauses (i) and (ii), while acting in such directors’ capacity as members of the Board of Directors, shall not be deemed to violate any of the provisions of this Article 3.]6.
Appears in 1 contract
Samples: Board Composition Agreement (Aegean Marine Petroleum Network Inc.)
Standstill Provisions. During (a) Xxxxxxxxxxx agrees that, from the date of this Agreement until 12:01 a.m., Eastern time, on the Termination Date (the “Standstill Period”), unless expressly authorized in writing to do so by a majority neither it nor any of the members of the Board of Directors, acting through a committee of directors that qualify as “independent directors” as defined by applicable stock exchange listing rules [(which term, for this purpose, will exclude any directors nominated by the Block Sale Transferee)]1, the Block Sale Transferee shall notits Affiliates or Associates under its control will, and shall it will cause each of its Affiliates and Associates under its control not to, directly or indirectly, acting alone or as part of a groupin any manner:
(ai) makeengage in any solicitation of proxies or consents or become a “participant” in a “solicitation” (as such terms are defined in Regulation 14A under the Exchange Act) of proxies or consents (including, without limitation, any solicitation of consents that seeks to call a special meeting of stockholders and any exempt solicitation under Rule 14a-2(b)(1) under the Exchange Act), in each case, with respect to securities of the Company;
(ii) form, join or in any way participate in any solicitation “group” (within the meaning of any proxy [(but without regard to the exclusion set forth in Rule 14a-1(l)(2)(ivSection 13(d)(3) under of the Exchange Act from the definition of “solicitation”)]2 to vote any Company Common Shares (or other equity securities of the CompanyAct) with respect to the Common Stock (other than a “group” that includes all or some of the entities or persons identified on Exhibit B, but does not include any matter other entities or persons not identified on Exhibit B as of the date hereof) or otherwise support or participate in any effort by a Third Party with respect to the matters set forth herein; provided, however, that nothing herein shall limit the ability of an Affiliate of Xxxxxxxxxxx to join the “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;
(includingiii) deposit any Common Stock in any voting trust or subject any Common Stock to any arrangement or agreement with respect to the voting of any Common Stock, without limitationother than any such voting trust, arrangement or agreement solely among the members of Xxxxxxxxxxx and otherwise in accordance with this Agreement;
(iv) seek, or encourage any person or entity, to submit nominations in furtherance of a “contested solicitation solicitation” for the election or removal of directors with respect to the Company)Company or seek, encourage or take any other than solicitations action with respect to the election or acting as a participant in support removal of all any directors;
(A) make any proposal for consideration by stockholders at any annual or special meeting of stockholders of the Company’s nominees [including, (B) make any offer or proposal (with or without limitationconditions) with respect to any merger, acquisition, recapitalization, restructuring, disposition or other business combination involving Xxxxxxxxxxx and the nominees of Company, (C) affirmatively solicit a third party to make an offer or proposal (with or without conditions) with respect to any merger, acquisition, recapitalization, restructuring, disposition or other business combination involving the Block Sale Transferee pursuant to Article 5]3;
Company, or publicly encourage, initiate or support any third party in making such an offer or proposal, (bD) formpublicly comment on any third party proposal regarding any merger, join in acquisition, recapitalization, restructuring, disposition, or in any way participate in a group (for the avoidance of doubt, the Block Sale Transferee shall not be deemed to have formed, joined in or in any way participated in a group with the Company as a result of the Block Sale Transferee’s execution of this Agreement) other business combination with respect to the Company Common Shares by such third party prior to such proposal becoming public or (E) call or other equity securities of the Company) or deposit any Company Common Shares (or other equity securities of the Company) in a voting trust or similar arrangement or subject any Company Common Shares (or other equity securities of the Company) to any voting agreement or similar arrangement, or grant any proxy with respect to any Company Common Shares (or other equity securities of the Company) (other than to a designated representative of the 1 Note to form: bracketed language to be removed if Block Sale Transferee does not accept the board nomination rights. 2 Note to form: bracketed language to be removed if Block Sale Transferee does not accept the board nomination rights. 3 Note to form: bracketed language to be removed if Block Sale Transferee does not accept the board nomination rights. Company pursuant to a proxy statement of the Company), other than as contemplated by the Governance Agreement or the Stockholders Agreement or the transactions contemplated thereby;
(c) seek to call, or to request the calling of, or call a special meeting of stockholders;
(vi) seek, alone or in concert with others, representation on the stockholders Board, except as specifically permitted in Section 1;
(vii) other than in Rule 144 open market broker sale transactions where the identity of the Companypurchaser is not known and in underwritten widely dispersed public offerings, sell, offer or seek agree to makesell directly or indirectly, through swap or make, a stockholder proposal (whether pursuant to Rule 14a-8 under the Exchange Act hedging transactions or otherwise) at any meeting , the securities of the stockholders Company or any rights decoupled from the underlying securities held by Xxxxxxxxxxx to any person or entity not a party to this agreement (a “Third Party”) that would to Xxxxxxxxxxx’x knowledge (after due inquiry) result in such Third Party, together with its Affiliates, owning, controlling or otherwise having any beneficial or other ownership interest in the aggregate of 5% or more of the Companyshares of Common Stock outstanding at such time or would increase the beneficial or other ownership interest of any Third Party who, together with its Affiliates, has a beneficial or make a request for a list other ownership interest in the aggregate of 5% or more of the Company’s stockholders, or[shares of Common Stock outstanding at such time, other than pursuant Schedule 13G filers that are mutual funds, pension funds, index funds or investment fund managers with no known history of activism or known plans to the Block Sale Transferee’s nomination rights engage in accordance with Article 5 of this Agreement,]4 seek election of a representative to the Board of Directorsactivism, seek to place a representative on the Board of Directors or seek the removal of any director from the Board of Directors, or otherwise acting alone, or by participating except in each case in a group, seek to control or influence transaction approved by the governance or policies of the CompanyBoard;
(dviii) effect purchase or seek cause to effect be purchased or otherwise acquire or agree to acquire beneficial ownership of any Voting Securities (including, without limitation, by entering into any discussions, negotiations, agreements or understandings whether or not legally enforceable with any third Personas defined below), offer if in any such case, immediately after the taking of such action, Xxxxxxxxxxx would, in the aggregate, collectively beneficially own, or propose have an economic interest in, an amount that would equal or exceed 15% of the then outstanding shares of Common Stock;
(whether publicly ix) make any request for stocklist materials or other books and records of the Company under Section 220 of the Delaware General Corporation Law or otherwise;
(x) other than litigation by Xxxxxxxxxxx to effect, or cause or participate in, or in any way assist or facilitate any other Person to effect or seek, offer or propose (whether publicly or otherwise) to effect or participate in any acquisition of any Company Common Shares (or other equity securities of the Company) (or Beneficial Ownership thereof) in excess of the Ownership Limitation, except in accordance with Section 2.1; provided, that, for the avoidance of doubt, the Block Sale Transferee is permitted to Transfer to an unaffiliated third party any Company Common Shares (or other equity securities of the Company) Beneficially Owned by the Block Sale Transferee, subject to enforce the provisions of Article 8 hereofthis Agreement, if applicable;
(e) effect or seek to effect (includinginstitute, without limitationsolicit, by entering into any discussions, negotiations, agreements or understandings whether or not legally enforceable with any third Person), offer or propose (whether publicly or otherwise) to effect, or cause or participate in, or in any way assist or facilitate join, as a party, any other Person to effect or seeklitigation, offer or propose (whether publicly or otherwise) to effect or participate in (i) any tender offer or exchange offer, merger, acquisition, share exchange arbitration or other business combination proceeding against or involving the Company or any of its Subsidiariescurrent or former directors or officers (including derivative actions);
(xi) seek to advise, (ii) encourage, support or influence any recapitalization, restructuring, liquidation, dissolution person or other extraordinary transaction entity with respect to the Company voting or any of its Subsidiaries or any material portion of its or their businesses, or (iii) any acquisition disposition of any material assets or businesses securities of the Company at any annual or any special meeting of its Subsidiaries;
(f) publicly disclosestockholders, or cause or, except in a material manner, facilitate the public disclosure (including without limitation through the filing by it of any document or report accordance with the SEC or any other governmental agency or any disclosure to any 4 Note to form: bracketed language to be removed if Block Sale Transferee does not accept the board nomination rights. journalist, member of the media or securities analyst) of any intent, purpose, plan or proposal to obtain any waiver, or consent under, or any amendment of, any of the provisions of Section 2.1, this Section 3.1, or Article 4 (except as described in Section 4.1) or bring any action to (i) contest the validity of Section 2.1, this Section 3.1 or Article 4, or (ii) seek a release from the restrictions contained in Section 2.1, this Section 3.1 or Article 4;
(g) unless required by law, make or issue or cause to be made or issued any public disclosure, announcement or statement (including without limitation the filing of any document or report with the SEC or any other governmental agency or any disclosure to any journalist, member of the media or securities analyst) (i) in support of any solicitation described in paragraph (a) above (other than solicitations by the Company), (ii) in support of any matter described in paragraph (c) above, (iii) concerning any potential matter described in paragraph (d) above; (iv) concerning any potential matter described in paragraph (e) above; or (v) negatively commenting upon the Company’s corporate strategy, business, corporate activities, board of directors or management (for the avoidance of doubt, making any factual statement about the Company’s corporate strategy, business, corporate activities, board of directors or management shall not be prohibited by this Section 3.1(g)(v))1; or
(hxii) enter into make any discussions, negotiations, agreements request or understandings with submit any Person with respect proposal to any amend the terms of the foregoing or advise, assist or seek to persuade others to take any action with respect to any of the foregoing. Notwithstanding the foregoing, (a) [the restrictions in Sections 3.1(d), 3.1(e), 3.1(f), 3.1(g)(iii), 3.1(g)(iv), 3.1(g)(v) and 3.1(h) (to the extent it relates to any of the foregoing) shall not apply at any time that (i) the Company fails to comply in all material respects with its obligations under Article 5 hereof, which failure continues unremedied for a period of 10 business days following receipt by the Company of a written notice from the Block Sale Transferee of such failure or (ii) the Block Sale Transferee has relinquished its nomination rights pursuant to Article 5 and all Block Sale Transferee nominated directors have resigned; or (b)]5 in the event that (x) the Board of Directors determines that the Company should engage in any transaction described in Section 3.1(e)(i) or 3.1(e)(ii), the Block Sale Transferee shall be permitted to participate in such Board of Directors’ approved transaction as a shareholder on the same terms and conditions as any this Agreement other shareholder of the Company, (y) the Board of Directors determines that the Company should solicit from one or more Persons or enter into discussions with one or more Persons regarding, or invites any other Person or group to make a proposal (without similarly inviting the Block Sale Transferee to make a similar proposal) with respect to an acquisition of (i) all or substantially all of the equity securities or assets of the Company or any of its Subsidiaries (by merger, tender offer or otherwise) or (ii) any material assets or businesses of the Company or any of its Subsidiaries, the Block Sale Transferee shall have the right to make a than through non-public competing proposal to the Board of Directors in compliance communications with any written procedures generally applicable to Persons making proposals provided by the Company 5 Note to form: enumerated restrictions to be removed if the Block Sale Transferee does not accept the board nomination rights. or the Board of Directors or (z) any third party that is not an Affiliate of the Block Sale Transferee makes a bona fide offer or proposal, with respect to a matter described in Section 3.1(d) or 3.1(e) above (a “Third Party Proposal”), the Block Sale Transferee (A) shall have the right to make a non-public competing proposal to the Board of Directors and may publicly announce that it has made a competing proposal to the Board of Directors so long as such public announcement does not constitute an offer or a solicitation to any recipient thereof and (B) may tender, exchange or otherwise sell or transfer its Company Common Shares (or other equity securities of the Company) to such third party in accordance with the Third Party Proposal; provided, however, that in the case of clauses (y) and (z), the Block Sale Transferee shall be prohibited from participating with, joining in a group with or providing financing to any such third party). [For the avoidance of doubt, any discussions involving the directors nominated by the Block Sale Transferee pursuant to Article 5 hereof (i) at a meeting of the Board of Directors or (ii) with management of the Company, other members of the Board of Directors or any of the Company’s advisors or representatives, in the case of clauses (i) and (ii), while acting in such directors’ capacity as members of the Board of Directors, shall would not be deemed reasonably determined to violate trigger public disclosure obligations for any of the provisions of this Article 3.]6Party.
Appears in 1 contract
Samples: Cooperation Agreement (Barnes & Noble Education, Inc.)
Standstill Provisions. During (a) Starboard agrees that, from the date of this Agreement until the earlier of (x) the date that is fifteen (15) business days prior to the deadline for the submission of stockholder nominations for the Company’s 2020 annual meeting of stockholders (the “2020 Annual Meeting”) pursuant to the Company’s Amended and Restated Bylaws, effective March 2, 2018 (the “Company Bylaws”), or (y) the date that is one hundred (100) days prior to the first anniversary of the 2019 Annual Meeting (the “Standstill Period”), unless expressly authorized in writing to do so by a majority neither it nor any of the members of the Board of Directors, acting through a committee of directors that qualify as “independent directors” as defined by applicable stock exchange listing rules [(which term, for this purpose, will exclude any directors nominated by the Block Sale Transferee)]1, the Block Sale Transferee shall notits controlled Affiliates or Associates will, and shall it will cause each of its controlled Affiliates and Associates not to, directly or indirectly, acting alone or as part of a groupin any manner:
i. engage in any solicitation of proxies or consents or become a “participant” in a “solicitation” (aas such terms are defined in Regulation 14A under the Exchange Act) makeof proxies or consents (including, without limitation, any solicitation of consents that seeks to call a special meeting of stockholders), in each case, with respect to securities of the Company;
ii. form, join or in any way participate in any solicitation “group” (within the meaning of any proxy [(but without regard to the exclusion set forth in Rule 14a-1(l)(2)(ivSection 13(d)(3) under of the Exchange Act from the definition of “solicitation”)]2 to vote any Company Common Shares (or other equity securities of the CompanyAct) with respect to the Common Stock (other than a “group” that includes all or some of the entities or persons identified on Exhibit A, but does not include any matter (includingother entities or persons not identified on Exhibit A as of the date hereof); provided, without limitationhowever, that nothing herein shall limit the ability of an Affiliate of Starboard to join the “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;
iii. deposit any Common Stock in any voting trust or subject any Common Stock to any arrangement or agreement with respect to the voting of any Common Stock, other than any such voting trust, arrangement or agreement solely among the members of Starboard and otherwise in accordance with this Agreement;
iv. seek or submit, or knowingly encourage any person or entity, to seek or submit nomination(s) in furtherance of a “contested solicitation solicitation” for the appointment, election or removal of directors with respect to the Company)Company or seek, knowingly encourage or take any other than solicitations or acting as a participant in support of all of the Company’s nominees [including, without limitation, the nominees of the Block Sale Transferee pursuant to Article 5]3;
(b) form, join in or in any way participate in a group (for the avoidance of doubt, the Block Sale Transferee shall not be deemed to have formed, joined in or in any way participated in a group with the Company as a result of the Block Sale Transferee’s execution of this Agreement) action with respect to the Company Common Shares (election or other equity securities of the Company) or deposit any Company Common Shares (or other equity securities of the Company) in a voting trust or similar arrangement or subject any Company Common Shares (or other equity securities of the Company) to any voting agreement or similar arrangement, or grant any proxy with respect to any Company Common Shares (or other equity securities of the Company) (other than to a designated representative of the 1 Note to form: bracketed language to be removed if Block Sale Transferee does not accept the board nomination rights. 2 Note to form: bracketed language to be removed if Block Sale Transferee does not accept the board nomination rights. 3 Note to form: bracketed language to be removed if Block Sale Transferee does not accept the board nomination rights. Company pursuant to a proxy statement of the Company), other than as contemplated by the Governance Agreement or the Stockholders Agreement or the transactions contemplated thereby;
(c) seek to call, or to request the calling of, or call a special meeting of the stockholders of the Company, or seek to make, or make, a stockholder proposal (whether pursuant to Rule 14a-8 under the Exchange Act or otherwise) at any meeting of the stockholders of the Company, or make a request for a list of the Company’s stockholders, or[, other than pursuant to the Block Sale Transferee’s nomination rights in accordance with Article 5 of this Agreement,]4 seek election of a representative to the Board of Directors, seek to place a representative on the Board of Directors or seek the removal of any director from the Board of Directors, or otherwise acting alone, or by participating in a group, seek to control or influence the governance or policies of the Company;
(d) effect or seek to effect (including, without limitation, by entering into any discussions, negotiations, agreements or understandings whether or not legally enforceable with any third Person), offer or propose (whether publicly or otherwise) to effect, or cause or participate in, or in any way assist or facilitate any other Person to effect or seek, offer or propose (whether publicly or otherwise) to effect or participate in any acquisition of any Company Common Shares (or other equity securities of the Company) (or Beneficial Ownership thereof) in excess of the Ownership Limitation, except in accordance with Section 2.1; provided, that, for the avoidance of doubt, the Block Sale Transferee is permitted to Transfer to an unaffiliated third party any Company Common Shares (or other equity securities of the Company) Beneficially Owned by the Block Sale Transferee, subject to the provisions of Article 8 hereof, if applicable;
(e) effect or seek to effect (including, without limitation, by entering into any discussions, negotiations, agreements or understandings whether or not legally enforceable with any third Person), offer or propose (whether publicly or otherwise) to effect, or cause or participate in, or in any way assist or facilitate any other Person to effect or seek, offer or propose (whether publicly or otherwise) to effect or participate in (i) any tender offer or exchange offer, merger, acquisition, share exchange or other business combination involving the Company or any of its Subsidiaries, (ii) any recapitalization, restructuring, liquidation, dissolution or other extraordinary transaction with respect to the Company or any of its Subsidiaries or any material portion of its or their businesses, or (iii) any acquisition of any material assets or businesses of the Company or any of its Subsidiaries;
(f) publicly disclose, or cause or, in a material manner, facilitate the public disclosure (including without limitation through the filing by it of any document or report with the SEC or any other governmental agency or any disclosure to any 4 Note to form: bracketed language to be removed if Block Sale Transferee does not accept the board nomination rights. journalist, member of the media or securities analyst) of any intent, purpose, plan or proposal to obtain any waiver, or consent under, or any amendment of, any of the provisions of Section 2.1, this Section 3.1, or Article 4 (except as described in Section 4.1) or bring any action to (i) contest the validity of Section 2.1, this Section 3.1 or Article 4, or (ii) seek a release from the restrictions contained in Section 2.1, this Section 3.1 or Article 4;
(g) unless required by law, make or issue or cause to be made or issued any public disclosure, announcement or statement (including without limitation the filing of any document or report with the SEC or any other governmental agency or any disclosure to any journalist, member of the media or securities analyst) (i) in support of any solicitation described in paragraph (a) above (other than solicitations by the Company), (ii) in support of any matter described in paragraph (c) above, (iii) concerning any potential matter described in paragraph (d) above; (iv) concerning any potential matter described in paragraph (e) above; or (v) negatively commenting upon the Company’s corporate strategy, business, corporate activities, board of directors or management (for the avoidance of doubt, making any factual statement about the Company’s corporate strategy, business, corporate activities, board of directors or management shall not be prohibited by this Section 3.1(g)(v)); or
(h) enter into any discussions, negotiations, agreements or understandings with any Person with respect to any of the foregoing or advise, assist or seek to persuade others to take any action with respect to any of the foregoing. Notwithstanding the foregoing, (a) [the restrictions in Sections 3.1(d), 3.1(e), 3.1(f), 3.1(g)(iii), 3.1(g)(iv), 3.1(g)(v) and 3.1(h) (to the extent it relates to any of the foregoing) shall not apply at any time that (i) the Company fails to comply in all material respects with its obligations under Article 5 hereof, which failure continues unremedied for a period of 10 business days following receipt by the Company of a written notice from the Block Sale Transferee of such failure or (ii) the Block Sale Transferee has relinquished its nomination rights pursuant to Article 5 and all Block Sale Transferee nominated directors have resigned; or (b)]5 in the event that (x) the Board of Directors determines that the Company should engage in any transaction described in Section 3.1(e)(i) or 3.1(e)(ii), the Block Sale Transferee shall be permitted to participate in such Board of Directors’ approved transaction as a shareholder on the same terms and conditions as any other shareholder of the Company, (y) the Board of Directors determines that the Company should solicit from one or more Persons or enter into discussions with one or more Persons regarding, or invites any other Person or group to make a proposal (without similarly inviting the Block Sale Transferee to make a similar proposal) with respect to an acquisition of (i) all or substantially all of the equity securities or assets of the Company or any of its Subsidiaries (by merger, tender offer or otherwise) or (ii) any material assets or businesses of the Company or any of its Subsidiaries, the Block Sale Transferee shall have the right to make a non-public competing proposal to the Board of Directors in compliance with any written procedures generally applicable to Persons making proposals provided by the Company 5 Note to form: enumerated restrictions to be removed if the Block Sale Transferee does not accept the board nomination rights. or the Board of Directors or (z) any third party that is not an Affiliate of the Block Sale Transferee makes a bona fide offer or proposal, with respect to a matter described in Section 3.1(d) or 3.1(e) above (a “Third Party Proposal”), the Block Sale Transferee (A) shall have the right to make a non-public competing proposal to the Board of Directors and may publicly announce that it has made a competing proposal to the Board of Directors so long as such public announcement does not constitute an offer or a solicitation to any recipient thereof and (B) may tender, exchange or otherwise sell or transfer its Company Common Shares (or other equity securities of the Company) to such third party in accordance with the Third Party Proposaldirectors; provided, however, that nothing in this Agreement shall prevent Starboard or its Affiliates or Associates from taking actions in furtherance of identifying director candidates in connection with the 2020 Annual Meeting so long as such actions do not create a public disclosure obligation for Starboard or the Company and are undertaken on a basis reasonably designed to be confidential and in accordance in all material respects with Starboard’s normal practices in the case of clauses (y) and (z), the Block Sale Transferee shall be prohibited from participating with, joining in a group with or providing financing to any such third party). [For the avoidance of doubt, any discussions involving the directors nominated by the Block Sale Transferee pursuant to Article 5 hereof (i) at a meeting of the Board of Directors or (ii) with management of the Company, other members of the Board of Directors or any of the Company’s advisors or representatives, in the case of clauses (i) and (ii), while acting in such directors’ capacity as members of the Board of Directors, shall not be deemed to violate any of the provisions of this Article 3.]6circumstances;
Appears in 1 contract
Standstill Provisions. During ECI agrees that, during the Standstill Periodterm of this Agreement, unless expressly authorized in writing to do so by a majority of the members of the Board of Directorswithout Gottschalks' prior written consent, acting through a committee of directors that qualify as “independent directors” as defined by applicable stock exchange listing rules [(which term, for this purpose, ECI will exclude any directors nominated by the Block Sale Transferee)]1, the Block Sale Transferee shall not, not and shall will cause its Affiliates and Associates not to, directly or indirectly, acting alone or as part of a group:
(a) make, purchase or in any way participate in any solicitation otherwise acquire shares of any proxy [(but without regard to the exclusion set forth in Rule 14a-1(l)(2)(iv) under the Exchange Act from the definition of “solicitation”)]2 to vote any Company Gottschalks Common Shares Stock (or options, rights or warrants or other equity commitments to purchase and securities convertible into (or exchangeable or redeemable for) shares of Gottschalks Common Stock) as a result of which, after giving effect to such purchase or acquisition, ECI and its Affiliates and Associates would Beneficially Own in the aggregate more than 33(% of the Company) with respect to any matter (including, without limitation, any contested solicitation for the election outstanding shares of directors with respect to the Company), other than solicitations or acting as a participant in support of all of the Company’s nominees [including, without limitation, the nominees of the Block Sale Transferee pursuant to Article 5]3Gottschalks Common Stock;
(b) form, join in or in any way participate in a group "group" (for within the avoidance meaning of doubt, the Block Sale Transferee shall not be deemed to have formed, joined in or in any way participated in a group with the Company as a result Section 13(d)(3) of the Block Sale Transferee’s execution of this AgreementExchange Act) with respect to the Company Common Shares (or other equity any securities of the Company) or deposit any Company Common Shares (or other equity securities of the Company) in a voting trust or similar arrangement or subject any Company Common Shares (or other equity securities of the Company) to any voting agreement or similar arrangement, or grant any proxy with respect to any Company Common Shares (or other equity securities of the Company) (other than to a designated representative of the 1 Note to form: bracketed language to be removed if Block Sale Transferee does not accept the board nomination rights. 2 Note to form: bracketed language to be removed if Block Sale Transferee does not accept the board nomination rights. 3 Note to form: bracketed language to be removed if Block Sale Transferee does not accept the board nomination rights. Company pursuant to a proxy statement of the Company), other than as contemplated by the Governance Agreement or the Stockholders Agreement or the transactions contemplated therebyGottschalks;
(c) seek participate in or solicit, encourage or propose to call, effect or to request the calling of, or call a special meeting of the stockholders of the Company, or seek to make, or make, a stockholder proposal negotiate any Covered Transaction (whether pursuant to Rule 14a-8 under the Exchange Act or otherwise) at any meeting of the stockholders of the Company, or make a request for a list of the Company’s stockholders, or[, other than pursuant to the Block Sale Transferee’s nomination rights in accordance with Article 5 of this Agreement,]4 seek election of a representative to the Board of Directors, seek to place a representative on the Board of Directors or seek the removal of any director from the Board of Directors, or otherwise acting alone, or by participating in a group, seek to control or influence the governance or policies of the CompanyAsset Purchase Agreement);
(d) effect or seek to effect (including, without limitation, by entering into any discussions, negotiations, agreements or understandings whether or not legally enforceable with any third Person), offer initiate or propose (any stockholder proposal with respect to a Covered Transaction other than with the consent of Gottschalks' Board of Directors or induce or attempt to induce any other person to initiate any stockholder proposal with respect to a Covered Transaction other than with the consent of Gottschalks' Board of Directors or make any statement or proposal, whether publicly written or otherwise) oral, to effectthe Board of Directors of Gottschalks with respect to a Covered Transaction, or cause to any director, officer or participate inagent of Gottschalks, or make any public announcement or proposal whatsoever with respect to a Covered Transaction or solicit or encourage any other person to make any such statement or proposal;
(e) solicit, initiate, encourage or in any way participate, directly or indirectly, in any "solicitation" of "proxies" or become a "participant" in any "election contest" (as such terms are defined or used in Regulation 14A under the Exchange Act, disregarding clause (iv) of Rule 14a-1(l)(2) and including an exempt solicitation pursuant to Rule 14a-2(b)(1)); call, or in any way assist or facilitate any other Person to effect or seek, offer or propose (whether publicly or otherwise) to effect encourage or participate in a call for, any acquisition special meeting of any Company Common Shares stockholders of Gottschalks (or other equity securities of the Company) (or Beneficial Ownership thereof) in excess of the Ownership Limitation, except in accordance with Section 2.1; provided, that, for the avoidance of doubt, the Block Sale Transferee is permitted to Transfer to an unaffiliated third party any Company Common Shares (or other equity securities of the Company) Beneficially Owned by the Block Sale Transferee, subject to the provisions of Article 8 hereof, if applicable;
(e) effect or seek to effect (including, without limitation, by entering into any discussions, negotiations, agreements or understandings whether or not legally enforceable with any third Person), offer or propose (whether publicly or otherwise) to effect, or cause or participate in, or in any way assist or facilitate any other Person to effect or seek, offer or propose (whether publicly or otherwise) to effect or participate in (i) any tender offer or exchange offer, merger, acquisition, share exchange or other business combination involving the Company or any of its Subsidiaries, (ii) any recapitalization, restructuring, liquidation, dissolution or other extraordinary transaction with respect to the Company or any of its Subsidiaries or any material portion of its or their businesses, or (iii) any acquisition of any material assets or businesses of the Company or any of its Subsidiaries;
(f) publicly disclose, or cause or, in a material manner, facilitate the public disclosure (including without limitation through the filing by it of any document or report with the SEC or any other governmental agency or any disclosure to any 4 Note to form: bracketed language to be removed if Block Sale Transferee does not accept the board nomination rights. journalist, member of the media or securities analyst) of any intent, purpose, plan or proposal to obtain any waiver, or consent under, or any amendment of, any of the provisions of Section 2.1, this Section 3.1, or Article 4 (except as described in Section 4.1) or bring any action to (i) contest the validity of Section 2.1, this Section 3.1 or Article 4, or (ii) seek a release from the restrictions contained in Section 2.1, this Section 3.1 or Article 4;
(g) unless required by law, make or issue or cause to be made or issued any public disclosure, announcement or statement (including without limitation the filing of any document or report with the SEC or any other governmental agency or any disclosure to any journalist, member of the media or securities analyst) (i) in support of any solicitation described in paragraph (a) above (other than solicitations by the Company), (ii) in support of any matter described in paragraph (c) above, (iii) concerning any potential matter described in paragraph (d) above; (iv) concerning any potential matter described in paragraph (e) above; or (v) negatively commenting upon the Company’s corporate strategy, business, corporate activities, board of directors or management (for the avoidance of doubt, making any factual statement about the Company’s corporate strategy, business, corporate activities, board of directors or management shall not be prohibited by this Section 3.1(g)(v)); or
(h) enter into any discussions, negotiations, agreements or understandings with any Person with respect to any of the foregoing or advise, assist or seek to persuade others to take any action with respect to any acting by written consent of the foregoing. Notwithstanding the foregoingstockholders of Gottschalks); request, (a) [the restrictions in Sections 3.1(d), 3.1(e), 3.1(f), 3.1(g)(iii), 3.1(g)(iv), 3.1(g)(v) and 3.1(h) (or take any action to the extent it relates to obtain or retain any list of the foregoing) shall not apply at holders of any time that (i) the Company fails to comply in all material respects with its obligations under Article 5 hereof, which failure continues unremedied for a period securities of 10 business days following receipt by the Company of a written notice from the Block Sale Transferee of such failure or (ii) the Block Sale Transferee has relinquished its nomination rights pursuant to Article 5 and all Block Sale Transferee nominated directors have resignedGottschalks; or (b)]5 in the event that (x) the Board of Directors determines that the Company should engage in initiate or propose any transaction described in Section 3.1(e)(i) stockholder proposal or 3.1(e)(ii), the Block Sale Transferee shall be permitted to participate in such Board or encourage the making of, or solicit stockholders of Directors’ approved transaction as a shareholder on Gottschalks for the same terms and conditions as any other shareholder of the Companyapproval of, (y) the Board of Directors determines that the Company should solicit from one or more Persons or enter into discussions with one or more Persons regarding, or invites any other Person or group to make a proposal (without similarly inviting the Block Sale Transferee to make a similar proposal) with respect to an acquisition of (i) all or substantially all of the equity securities or assets of the Company or any of its Subsidiaries (by merger, tender offer or otherwise) or (ii) any material assets or businesses of the Company or any of its Subsidiaries, the Block Sale Transferee shall have the right to make a non-public competing proposal to the Board of Directors in compliance with any written procedures generally applicable to Persons making proposals provided by the Company 5 Note to form: enumerated restrictions to be removed if the Block Sale Transferee does not accept the board nomination rights. or the Board of Directors or (z) any third party that is not an Affiliate of the Block Sale Transferee makes a bona fide offer or proposal, with respect to a matter described in Section 3.1(d) or 3.1(e) above (a “Third Party Proposal”), the Block Sale Transferee (A) shall have the right to make a non-public competing proposal to the Board of Directors and may publicly announce that it has made a competing proposal to the Board of Directors so long as such public announcement does not constitute an offer or a solicitation to any recipient thereof and (B) may tender, exchange or otherwise sell or transfer its Company Common Shares (or other equity securities of the Company) to such third party in accordance with the Third Party Proposal; provided, however, that in the case of clauses (y) and (z), the Block Sale Transferee shall be prohibited from participating with, joining in a group with or providing financing to any such third party). [For the avoidance of doubt, any discussions involving the directors nominated by the Block Sale Transferee pursuant to Article 5 hereof (i) at a meeting of the Board of Directors or (ii) with management of the Company, other members of the Board of Directors or any of the Company’s advisors or representatives, in the case of clauses (i) and (ii), while acting in such directors’ capacity as members of the Board of Directors, shall not be deemed to violate any of the provisions of this Article 3.]6stockholder proposals;
Appears in 1 contract
Samples: Standstill Agreement (Levy Joseph)
Standstill Provisions. During Each Carlyle Entity agrees that, during the Standstill Periodterm of this Agreement, unless expressly authorized without the Company's prior written consent, no Carlyle Entity and no investment partnership in writing which Carlyle or one of its wholly owned subsidiaries is a general partner will, in any manner, directly or indirectly:
(a) acquire, publicly announce an intention to do so by a majority of the members of the Board of Directorsacquire, acting through a committee of directors that qualify as “independent directors” as defined by applicable stock exchange listing rules [(which termpublicly offer or propose to acquire, for this purpose, will exclude any directors nominated by the Block Sale Transferee)]1, the Block Sale Transferee shall not, and shall cause its Affiliates not toor agree to acquire, directly or indirectly, acting alone by purchase or as part otherwise, beneficial ownership of a group:
(a) makeany Voting Securities, or in direct or indirect rights or options to acquire (through purchase, exchange, conversion or otherwise) any way participate in Voting Securities if as a result of such acquisition, the Carlyle Entities and their Affiliates would beneficially own or have the right to acquire Voting Securities representing more than 30% of the issued and outstanding Voting Securities; provided, however, that this Section 3(a) shall not restrict any solicitation of any proxy [(but without regard Carlyle Entity from acquiring the Voting Securities initially issuable to the exclusion set forth in Rule 14a-1(l)(2)(iv) Carlyle Entities under the Exchange Act from the definition of “solicitation”)]2 to vote any Company Common Shares (or other equity securities terms of the Company) with respect Merger Agreement or issuable pursuant to any matter (including, without limitation, any contested solicitation the conversion rights under the Certificate of Designations for the election Series D Senior Convertible Participating Preferred Stock or the Certificate of directors with respect to Designations for the Company), other than solicitations or acting as a participant in support of all of the Company’s nominees [including, without limitation, the nominees of the Block Sale Transferee pursuant to Article 5]3Series E Senior Cumulative Convertible Participating Preferred Stock;
(b) seek representation on the Board of the Company (other than pursuant to the terms of Section 2 hereof or pursuant to the Certificate of Designations for the Series E Senior Cumulative Convertible Participating Preferred Stock);
(c) make any public announcement or proposal whatsoever with respect to a merger or other business combination, sale or transfer of substantially all of the assets, recapitalization, dividend, share repurchase, liquidation or other extraordinary corporate transaction with the Company or any other transaction which would result in a change of control of the Company (other than the sale of securities or capital stock of the Company by the Carlyle Entities or their Affiliates), advise, assist, solicit or encourage any other persons to make any such statement or proposal;
(d) make, directly or indirectly, any "solicitation" of "proxies" (as such terms are defined in Rule 14a-1 under the Securities Exchange Act of 1934, so amended (the "1934 Act")) to vote any Voting Securities, seek to advise, encourage or influence any person or entity with respect to the voting of any Voting Securities, initiate or propose any stockholder proposal or induce or attempt to induce any other person to initiate any stockholder proposal (other than any such action in furtherance of the election to the Board of the person designated by the Carlyle Entities pursuant to Section 2);
(e) deposit any Voting Securities into a voting trust, unless the trustee of such voting trust agrees to be bound by the terms of this Agreement;
(f) form, join in or in any way participate in a group "group" (for within the avoidance meaning of doubt, the Block Sale Transferee shall not be deemed to have formed, joined in or in any way participated in a group with the Company as a result Section 13(d)(3) of the Block Sale Transferee’s execution of this Agreement0000 Xxx) with respect to the Company Common Shares (or other equity securities of the Company) or deposit any Company Common Shares (or other equity securities of the Company) in a voting trust or similar arrangement or subject any Company Common Shares (or other equity securities of the Company) to any voting agreement or similar arrangement, or grant any proxy with respect to any Company Common Shares (or other equity securities of the Company) (other than to a designated representative of the 1 Note to form: bracketed language to be removed if Block Sale Transferee does not accept the board nomination rights. 2 Note to form: bracketed language to be removed if Block Sale Transferee does not accept the board nomination rights. 3 Note to form: bracketed language to be removed if Block Sale Transferee does not accept the board nomination rights. Company pursuant to a proxy statement of the Company)Voting Securities, other than as contemplated by the Governance Agreement or the Stockholders Agreement or the transactions contemplated thereby;
(c) seek to call, or to request the calling of, or call a special meeting group consisting of the stockholders of the Company, Carlyle Entities and their Affiliates or seek to make, or make, a stockholder proposal (whether pursuant to Rule 14a-8 under the Exchange Act or otherwise) at any meeting of the stockholders of the Company, or make a request for a list of the Company’s stockholders, or[, other than pursuant to the Block Sale Transferee’s nomination rights in accordance with Article 5 Voting Agreement, dated as of this Agreement,]4 seek election of a representative to the Board of DirectorsJuly 16, seek to place a representative on the Board of Directors or seek the removal of any director from the Board of Directors, or otherwise acting alone, or by participating in a group, seek to control or influence the governance or policies of the Company;
(d) effect or seek to effect (including, without limitation, by entering into any discussions, negotiations, agreements or understandings whether or not legally enforceable with any third Person), offer or propose (whether publicly or otherwise) to effect, or cause or participate in, or in any way assist or facilitate any other Person to effect or seek, offer or propose (whether publicly or otherwise) to effect or participate in any acquisition of any Company Common Shares (or other equity securities of the Company) (or Beneficial Ownership thereof) in excess of the Ownership Limitation, except in accordance with Section 2.1; provided, that, for the avoidance of doubt, the Block Sale Transferee is permitted to Transfer to an unaffiliated third party any Company Common Shares (or other equity securities of the Company) Beneficially Owned by the Block Sale Transferee, subject to the provisions of Article 8 hereof, if applicable;
(e) effect or seek to effect (including, without limitation, by entering into any discussions, negotiations, agreements or understandings whether or not legally enforceable with any third Person), offer or propose (whether publicly or otherwise) to effect, or cause or participate in, or in any way assist or facilitate any other Person to effect or seek, offer or propose (whether publicly or otherwise) to effect or participate in (i) any tender offer or exchange offer, merger, acquisition, share exchange or other business combination involving the Company or any of its Subsidiaries, (ii) any recapitalization, restructuring, liquidation, dissolution or other extraordinary transaction with respect to the Company or any of its Subsidiaries or any material portion of its or their businesses, or (iii) any acquisition of any material assets or businesses of the Company or any of its Subsidiaries;
(f) publicly disclose, or cause or, in a material manner, facilitate the public disclosure (including without limitation through the filing by it of any document or report with the SEC or any other governmental agency or any disclosure to any 4 Note to form: bracketed language to be removed if Block Sale Transferee does not accept the board nomination rights. journalist, member of the media or securities analyst) of any intent, purpose, plan or proposal to obtain any waiver, or consent under, or any amendment of, any of the provisions of Section 2.1, this Section 3.1, or Article 4 (except as described in Section 4.1) or bring any action to (i) contest the validity of Section 2.1, this Section 3.1 or Article 4, or (ii) seek a release from the restrictions contained in Section 2.1, this Section 3.1 or Article 42002;
(g) unless required by lawmake a public request to the Company (or its directors, make officers, stockholders, employees or issue or cause agents) to be made or issued take any public disclosure, announcement or statement (including without limitation the filing of any document or report with the SEC or any other governmental agency or any disclosure to any journalist, member action in respect of the media or securities analyst) (i) in support of any solicitation described in paragraph (a) above foregoing matters (other than solicitations any such action in furtherance of the election to the Board of the person designated by the Company), (ii) in support Carlyle Entities pursuant to Section 2 hereof or pursuant to the Certificate of any matter described in paragraph (c) above, (iii) concerning any potential matter described in paragraph (d) above; (iv) concerning any potential matter described in paragraph (e) above; or (v) negatively commenting upon the Company’s corporate strategy, business, corporate activities, board of directors or management (Designations for the avoidance of doubtSeries E Senior Cumulative Convertible Participating Preferred Stock);
(h) publicly disclose any intention, making any factual statement about plan or arrangement inconsistent with the Company’s corporate strategy, business, corporate activities, board of directors or management shall not be prohibited by this Section 3.1(g)(v))foregoing; or
(h) enter into any discussions, negotiations, agreements or understandings with any Person with respect to any of the foregoing or advise, assist or seek to persuade others to take any action with respect to any of the foregoing. Notwithstanding the foregoing, (a) [the restrictions in Sections 3.1(d), 3.1(e), 3.1(f), 3.1(g)(iii), 3.1(g)(iv), 3.1(g)(v) and 3.1(h) (to the extent it relates to any of the foregoing) shall not apply at any time that (i) the Company fails to comply in all material respects with its obligations under Article 5 hereof, which failure continues unremedied for a period of 10 business days following receipt by the Company of a written notice from the Block Sale Transferee of such failure request or (ii) the Block Sale Transferee has relinquished its nomination rights pursuant to Article 5 and all Block Sale Transferee nominated directors have resigned; or (b)]5 in the event propose that (x) the Board of Directors determines that the Company should engage in any transaction described in Section 3.1(e)(i) or 3.1(e)(ii), the Block Sale Transferee shall be permitted to participate in such Board of Directors’ approved transaction as a shareholder on the same terms and conditions as any other shareholder of the Company, (y) the Board of Directors determines that the Company should solicit from one or more Persons or enter into discussions with one or more Persons regarding, or invites any other Person or group to make a proposal (without similarly inviting the Block Sale Transferee to make a similar proposal) with respect to an acquisition of (i) all or substantially all of the equity securities or assets of the Company or any of its Subsidiaries (by merger, tender offer or otherwise) or (ii) any material assets or businesses Representative of the Company amend or waive any of its Subsidiaries, the Block Sale Transferee shall have the right to make a non-public competing proposal to the Board of Directors provision set forth in compliance with any written procedures generally applicable to Persons making proposals provided by the Company 5 Note to form: enumerated restrictions to be removed if the Block Sale Transferee does not accept the board nomination rights. or the Board of Directors or (z) any third party that is not an Affiliate of the Block Sale Transferee makes a bona fide offer or proposal, with respect to a matter described in this Section 3.1(d) or 3.1(e) above (a “Third Party Proposal”), the Block Sale Transferee (A) shall have the right to make a non-public competing proposal to the Board of Directors and may publicly announce that it has made a competing proposal to the Board of Directors so long as such public announcement does not constitute an offer or a solicitation to any recipient thereof and (B) may tender, exchange or otherwise sell or transfer its Company Common Shares (or other equity securities of the Company) to such third party in accordance with the Third Party Proposal; provided, however, that in the case of clauses (y) and (z), the Block Sale Transferee shall be prohibited from participating with, joining in a group with or providing financing to any such third party). [For the avoidance of doubt, any discussions involving the directors nominated by the Block Sale Transferee pursuant to Article 5 hereof (i) at a meeting of the Board of Directors or (ii) with management of the Company, other members of the Board of Directors or any of the Company’s advisors or representatives, in the case of clauses (i) and (ii), while acting in such directors’ capacity as members of the Board of Directors, shall not be deemed to violate any of the provisions of this Article 3.]63.
Appears in 1 contract
Samples: Management Rights and Standstill Agreement (Tc Group LLC)
Standstill Provisions. During ECI agrees that, during the Standstill Periodterm of this Agreement, unless expressly authorized in writing to do so by a majority of the members of the Board of Directorswithout Gottschalks' prior written consent, acting through a committee of directors that qualify as “independent directors” as defined by applicable stock exchange listing rules [(which term, for this purpose, ECI will exclude any directors nominated by the Block Sale Transferee)]1, the Block Sale Transferee shall not, not and shall will cause its Affiliates and Associates not to, directly or indirectly, acting alone or as part of a group:
: (a) make, purchase or in any way participate in any solicitation otherwise acquire shares of any proxy [(but without regard to the exclusion set forth in Rule 14a-1(l)(2)(iv) under the Exchange Act from the definition of “solicitation”)]2 to vote any Company Gottschalks Common Shares Stock (or options, rights or warrants or other equity commitments to purchase and securities convertible into (or exchangeable or redeemable for) shares of Gottschalks Common Stock) as a result of which, after giving effect to such purchase or acquisition, ECI and its Affiliates and Associates would Beneficially Own in the aggregate more than 33(% of the Company) with respect to any matter (including, without limitation, any contested solicitation for the election outstanding shares of directors with respect to the Company), other than solicitations or acting as a participant in support of all of the Company’s nominees [including, without limitation, the nominees of the Block Sale Transferee pursuant to Article 5]3;
Gottschalks Common Stock; (b) form, join in or in any way participate in a group "group" (for within the avoidance meaning of doubt, the Block Sale Transferee shall not be deemed to have formed, joined in or in any way participated in a group with the Company as a result Section 13(d)(3) of the Block Sale Transferee’s execution of this AgreementExchange Act) with respect to the Company Common Shares (or other equity any securities of the Company) or deposit any Company Common Shares (or other equity securities of the Company) in a voting trust or similar arrangement or subject any Company Common Shares (or other equity securities of the Company) to any voting agreement or similar arrangement, or grant any proxy with respect to any Company Common Shares (or other equity securities of the Company) (other than to a designated representative of the 1 Note to form: bracketed language to be removed if Block Sale Transferee does not accept the board nomination rights. 2 Note to form: bracketed language to be removed if Block Sale Transferee does not accept the board nomination rights. 3 Note to form: bracketed language to be removed if Block Sale Transferee does not accept the board nomination rights. Company pursuant to a proxy statement of the Company), other than as contemplated by the Governance Agreement or the Stockholders Agreement or the transactions contemplated thereby;
Gottschalks; (c) seek participate in or solicit, encourage or propose to call, effect or to request the calling of, or call a special meeting of the stockholders of the Company, or seek to make, or make, a stockholder proposal negotiate any Covered Transaction (whether pursuant to Rule 14a-8 under the Exchange Act or otherwise) at any meeting of the stockholders of the Company, or make a request for a list of the Company’s stockholders, or[, other than pursuant to the Block Sale Transferee’s nomination rights in accordance Asset Purchase Agreement); (d) initiate or propose any stockholder proposal with Article 5 respect to a Covered Transaction other than with the consent of this Agreement,]4 seek election Gottschalks' Board of Directors or induce or attempt to induce any other person to initiate any stockholder proposal with respect to a representative Covered Transaction other than with the consent of Gottschalks' Board of Directors or make any statement or proposal, whether written or oral, to the Board of Directors, seek Directors of Gottschalks with respect to place a representative on the Board of Directors or seek the removal of any director from the Board of DirectorsCovered Transaction, or otherwise acting aloneto any director, officer or agent of Gottschalks, or by participating make any public announcement or proposal whatsoever with respect to a Covered Transaction or solicit or encourage any other person to make any such statement or proposal; (e) solicit, initiate, encourage or in any way participate, directly or indirectly, in any "solicitation" of "proxies" or become a group"participant" in any "election contest" (as such terms are defined or used in Regulation 14A under the Exchange Act, seek disregarding clause (iv) of Rule 14a-1(l)(2) and including an exempt solicitation pursuant to control or influence the governance or policies of the Company;
(d) effect or seek to effect (including, without limitation, by entering into any discussions, negotiations, agreements or understandings whether or not legally enforceable with any third PersonRule 14a-2(b)(1), offer or propose (whether publicly or otherwise) to effect, or cause or participate in); call, or in any way assist or facilitate any other Person to effect or seek, offer or propose (whether publicly or otherwise) to effect encourage or participate in a call for, any acquisition special meeting of any Company Common Shares stockholders of Gottschalks (or other equity securities of the Company) (or Beneficial Ownership thereof) in excess of the Ownership Limitation, except in accordance with Section 2.1; provided, that, for the avoidance of doubt, the Block Sale Transferee is permitted to Transfer to an unaffiliated third party any Company Common Shares (or other equity securities of the Company) Beneficially Owned by the Block Sale Transferee, subject to the provisions of Article 8 hereof, if applicable;
(e) effect or seek to effect (including, without limitation, by entering into any discussions, negotiations, agreements or understandings whether or not legally enforceable with any third Person), offer or propose (whether publicly or otherwise) to effect, or cause or participate in, or in any way assist or facilitate any other Person to effect or seek, offer or propose (whether publicly or otherwise) to effect or participate in (i) any tender offer or exchange offer, merger, acquisition, share exchange or other business combination involving the Company or any of its Subsidiaries, (ii) any recapitalization, restructuring, liquidation, dissolution or other extraordinary transaction with respect to the Company or any of its Subsidiaries or any material portion of its or their businesses, or (iii) any acquisition of any material assets or businesses of the Company or any of its Subsidiaries;
(f) publicly disclose, or cause or, in a material manner, facilitate the public disclosure (including without limitation through the filing by it of any document or report with the SEC or any other governmental agency or any disclosure to any 4 Note to form: bracketed language to be removed if Block Sale Transferee does not accept the board nomination rights. journalist, member of the media or securities analyst) of any intent, purpose, plan or proposal to obtain any waiver, or consent under, or any amendment of, any of the provisions of Section 2.1, this Section 3.1, or Article 4 (except as described in Section 4.1) or bring any action to (i) contest the validity of Section 2.1, this Section 3.1 or Article 4, or (ii) seek a release from the restrictions contained in Section 2.1, this Section 3.1 or Article 4;
(g) unless required by law, make or issue or cause to be made or issued any public disclosure, announcement or statement (including without limitation the filing of any document or report with the SEC or any other governmental agency or any disclosure to any journalist, member of the media or securities analyst) (i) in support of any solicitation described in paragraph (a) above (other than solicitations by the Company), (ii) in support of any matter described in paragraph (c) above, (iii) concerning any potential matter described in paragraph (d) above; (iv) concerning any potential matter described in paragraph (e) above; or (v) negatively commenting upon the Company’s corporate strategy, business, corporate activities, board of directors or management (for the avoidance of doubt, making any factual statement about the Company’s corporate strategy, business, corporate activities, board of directors or management shall not be prohibited by this Section 3.1(g)(v)); or
(h) enter into any discussions, negotiations, agreements or understandings with any Person with respect to any of the foregoing or advise, assist or seek to persuade others to take any action with respect to acting by written consent of the stockholders of Gottschalks); request, or take any action to obtain or retain any list of holders of any securities of Gottschalks; or initiate or propose any stockholder proposal or participate in or encourage the making of, or solicit stockholders of Gottschalks for the approval of, one or more stockholder proposals; (f) propose a nominee for director, or express support or opposition for any nominee for director or seek a change in the composition or size of Gottschalks' Board of Directors other than as provided in the Stockholders' Agreement; or (g) make a request to Gottschalks (or its directors, officers, stockholders, employees or agents) to amend or waive any provisions of this Agreement, the Certificate of Incorporation or Bylaws of Gottschalks or seek to challenge the legality or effect thereof, including without limitation any public request to permit ECI or any other person to take any action in respect of the matters referred to in this Section 2.1; (h) assist, advise, encourage or act in concert with any person with respect to, or seek to do, any of the foregoing; or (i) disclose any intention, plan or arrangement inconsistent with the foregoing. Notwithstanding Without limiting the foregoing, (a) [but for clarification purposes only, the above restrictions in Sections 3.1(d), 3.1(e), 3.1(f), 3.1(g)(iii), 3.1(g)(iv), 3.1(g)(v) and 3.1(h) (are not intended to limit the extent it relates to any of the foregoing) shall not apply at any time that (i) the Company fails to comply in all material respects with its obligations under Article 5 hereof, which failure continues unremedied for a period of 10 business days following receipt performance by the Company ECI Directors of a written notice from the Block Sale Transferee of such failure or (ii) the Block Sale Transferee has relinquished its nomination rights pursuant to Article 5 and all Block Sale Transferee nominated their fiduciary duties as directors have resigned; or (b)]5 acting solely in the event that (x) the Board of Directors determines that the Company should engage in any transaction described in Section 3.1(e)(i) or 3.1(e)(ii), the Block Sale Transferee shall be permitted to participate in such Board of Directors’ approved transaction as a shareholder on the same terms and conditions as any other shareholder of the Company, (y) the Board of Directors determines that the Company should solicit from one or more Persons or enter into discussions with one or more Persons regarding, or invites any other Person or group to make a proposal (without similarly inviting the Block Sale Transferee to make a similar proposal) with respect to an acquisition of (i) all or substantially all of the equity securities or assets of the Company or any of its Subsidiaries (by merger, tender offer or otherwise) or (ii) any material assets or businesses of the Company or any of its Subsidiaries, the Block Sale Transferee shall have the right to make a non-public competing proposal to the Board of Directors in compliance with any written procedures generally applicable to Persons making proposals provided by the Company 5 Note to form: enumerated restrictions to be removed if the Block Sale Transferee does not accept the board nomination rights. or the Board of Directors or (z) any third party that is not an Affiliate of the Block Sale Transferee makes a bona fide offer or proposal, with respect to a matter described in Section 3.1(d) or 3.1(e) above (a “Third Party Proposal”), the Block Sale Transferee (A) shall have the right to make a non-public competing proposal to the Board of Directors and may publicly announce that it has made a competing proposal to the Board of Directors so long as such public announcement does not constitute an offer or a solicitation to any recipient thereof and (B) may tender, exchange or otherwise sell or transfer its Company Common Shares (or other equity securities of the Company) to such third party in accordance with the Third Party Proposal; provided, however, that in the case of clauses (y) and (z), the Block Sale Transferee shall be prohibited from participating with, joining in a group with or providing financing to any such third party). [For the avoidance of doubt, any discussions involving the directors nominated by the Block Sale Transferee pursuant to Article 5 hereof (i) at a meeting of the Board of Directors or (ii) with management of the Company, other members of the Board of Directors or any of the Company’s advisors or representatives, in the case of clauses (i) and (ii), while acting in such directors’ capacity as members of the Board of Directors, shall not be deemed to violate any of the provisions of this Article 3.]6cacacity.
Appears in 1 contract
Standstill Provisions. During (a) Starboard agrees that, from the date of this Agreement until the earlier of (i) the date that is (ten) 10 business days prior to the deadline for the submission of stockholder nominations for the 2013 Annual Meeting pursuant to the Company’s bylaws or (ii) the date that is one-hundred (100) days prior to the first anniversary of the 2012 Annual Meeting (the “Standstill Period”), unless expressly authorized in writing to do so by a majority neither it nor any of the members of the Board of Directors, acting through a committee of directors that qualify as “independent directors” as defined by applicable stock exchange listing rules [(which term, for this purpose, will exclude any directors nominated by the Block Sale Transferee)]1, the Block Sale Transferee shall notits Affiliates or Associates under its control or direction will, and shall it will cause each of its Affiliates and Associates under its control not to, directly or indirectly, acting alone or as part of a groupin any manner:
(ai) makesolicit, or encourage or in any way engage in any solicitation of, any proxies or consents or become a “participant” in a “solicitation” as such terms are defined in Regulation 14A under the Exchange Act of proxies or consents (including, without limitation, any solicitation of consents that improperly seeks to call a special meeting of stockholders), in each case, with respect to securities of the Company;
(ii) advise, encourage, support or influence any person with respect to the voting or disposition of any securities of the Company at any annual or special meeting of stockholders, except in accordance with Section 1, or seek to do so;
(iii) form, join or in any way participate in any solicitation “group” (within the meaning of any proxy [(but without regard to the exclusion set forth in Rule 14a-1(l)(2)(ivSection 13(d)(3) under of the Exchange Act from the definition of “solicitation”)]2 to vote any Company Common Shares (or other equity securities of the CompanyAct) with respect to the Common Stock (other than a “group” that includes all or some of the persons identified on Exhibit A, but does not include any matter other entities or persons not identified on Exhibit A as of the date hereof); provided, however, that nothing herein shall limit the ability of an Affiliate of Starboard to join the “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;
(includingiv) deposit any Common Stock in any voting trust or subject any Common Stock to any arrangement or agreement with respect to the voting of any Common Stock, without limitationother than any such voting trust, arrangement or agreement solely among the members of Starboard and otherwise in accordance with this Agreement;
(v) seek or encourage any person to submit nominations in furtherance of a “contested solicitation solicitation” for the election or removal of directors with respect to the Company; provided, however, that nothing herein will limit the ability of Starboard to recommend a Replacement Director(s) in accordance with Section 1(h), other than solicitations or acting as a participant in support of all of the Company’s nominees [including, without limitation, the nominees of the Block Sale Transferee pursuant to Article 5]3;
(bA) form, join in make any proposal for consideration by stockholders at any annual or in any way participate in a group (for the avoidance special meeting of doubt, the Block Sale Transferee shall not be deemed to have formed, joined in or in any way participated in a group with stockholders of the Company as a result of the Block Sale Transferee’s execution of this Agreementor (B) make any offer or proposal (with or without conditions, publicly or otherwise) with respect to a merger, acquisition, disposition, consolidation, recapitalization, restructuring, liquidation, dissolution, or other business combination or extraordinary transaction involving the Company Common Shares (or other equity securities any subsidiary or Affiliate of the CompanyCompany (each, a “Business Proposal”); provided, however, that nothing herein will limit the ability of (1) or deposit any Company Common Shares (or other equity securities member of the Company) in a voting trust or similar arrangement or subject any Company Common Shares (or other equity securities of the Company) to any voting agreement or similar arrangementStarboard, or grant its respective Affiliates and Associates to vote its shares of Common Stock on any proxy with respect to any Company Common Shares (or other equity securities of the Company) (other than matter submitted to a designated representative of the 1 Note to form: bracketed language to be removed if Block Sale Transferee does not accept the board nomination rights. 2 Note to form: bracketed language to be removed if Block Sale Transferee does not accept the board nomination rights. 3 Note to form: bracketed language to be removed if Block Sale Transferee does not accept the board nomination rights. Company pursuant to a proxy statement of the Company), other than as contemplated by the Governance Agreement or the Stockholders Agreement or the transactions contemplated thereby;
(c) seek to call, or to request the calling of, or call a special meeting vote of the stockholders of the CompanyCompany relating to a Business Proposal, or seek and (2) Starboard to makepublicly announce its opposition, or makeincluding the reasons therefor, a stockholder proposal (whether pursuant to Rule 14a-8 under the Exchange Act or otherwise) at any meeting of the stockholders of the Company, or make a request for a list of the Company’s stockholders, or[, Board-approved publicly announced Business Proposal; provided that other than pursuant the limited right to publicly announce its opposition and the reasons therefore, Starboard will not and will cause each of its Affiliates and Associates under its control not to, directly or indirectly, take any other action relating to the Block Sale Transferee’s nomination rights Board-approved publicly announced Business Proposal otherwise prohibited by this Section 2;
(vii) seek, alone or in accordance concert with Article 5 of this Agreement,]4 seek election of a representative to the Board of Directorsothers, seek to place a representative representation on the Board of Directors Board, except as specifically contemplated in Section 1;
(viii) otherwise act, alone or seek the removal of any director from the Board of Directorsin concert with others, or otherwise acting alone, or by participating in a group, to seek to control or influence the governance management, Board of Directors or policies of the Company;
(d) effect or seek to effect (including, without limitation, by entering into any discussions, negotiations, agreements or understandings whether or not legally enforceable with any third Person), offer or propose (whether publicly or otherwise) to effect, or cause or participate in, or in any way assist or facilitate any other Person to effect or seek, offer or propose (whether publicly or otherwise) to effect or participate in any acquisition of any Company Common Shares (or other equity securities of the Company) (or Beneficial Ownership thereof) in excess of the Ownership Limitation, except in accordance with Section 2.1; provided, that, for the avoidance of doubt, the Block Sale Transferee is permitted to Transfer to an unaffiliated third party any Company Common Shares (or other equity securities of the Company) Beneficially Owned by the Block Sale Transferee, subject to the provisions of Article 8 hereof, if applicable;
(e) effect or seek to effect (including, without limitation, by entering into any discussions, negotiations, agreements or understandings whether or not legally enforceable with any third Person), offer or propose (whether publicly or otherwise) to effect, or cause or participate in, or in any way assist or facilitate any other Person to effect or seek, offer or propose (whether publicly or otherwise) to effect or participate in (i) any tender offer or exchange offer, merger, acquisition, share exchange or other business combination involving the Company or any of its Subsidiaries, (ii) any recapitalization, restructuring, liquidation, dissolution or other extraordinary transaction with respect to the Company or any of its Subsidiaries or any material portion of its or their businesses, or (iii) any acquisition of any material assets or businesses of the Company or any of its Subsidiariessubsidiaries, affiliates or divisions;
(f) publicly disclose, or cause or, in a material manner, facilitate the public disclosure (including without limitation through the filing by it of any document or report with the SEC or any other governmental agency or any disclosure to any 4 Note to form: bracketed language to be removed if Block Sale Transferee does not accept the board nomination rights. journalist, member of the media or securities analyst) of any intent, purpose, plan or proposal to obtain any waiver, or consent under, or any amendment of, any of the provisions of Section 2.1, this Section 3.1, or Article 4 (except as described in Section 4.1) or bring any action to (i) contest the validity of Section 2.1, this Section 3.1 or Article 4, or (ii) seek a release from the restrictions contained in Section 2.1, this Section 3.1 or Article 4;
(g) unless required by law, make or issue or cause to be made or issued any public disclosure, announcement or statement (including without limitation the filing of any document or report with the SEC or any other governmental agency or any disclosure to any journalist, member of the media or securities analyst) (i) in support of any solicitation described in paragraph (a) above (other than solicitations by the Company), (ii) in support of any matter described in paragraph (c) above, (iii) concerning any potential matter described in paragraph (d) above; (iv) concerning any potential matter described in paragraph (e) above; or (v) negatively commenting upon the Company’s corporate strategy, business, corporate activities, board of directors or management (for the avoidance of doubt, making any factual statement about the Company’s corporate strategy, business, corporate activities, board of directors or management shall not be prohibited by this Section 3.1(g)(v)); or
(hix) enter into any discussions, negotiations, agreements arrangements or understandings with any Person third party with respect to the matters set forth in this Section 2; or
(x) take any action which could cause or require the Company or any Affiliate of the Company to make a public announcement regarding any of the foregoing foregoing, publicly seek or adviserequest permission to do any of the foregoing, assist publicly make any request to amend, waive or terminate any provision of this Section 2 (including, without limitation, this Section 2(a)(x), or make or seek permission to persuade others to take make any action public announcement with respect to any of the foregoing. Notwithstanding the foregoing, .
(ab) [the restrictions in Sections 3.1(d), 3.1(e), 3.1(f), 3.1(g)(iii), 3.1(g)(iv), 3.1(g)(vThe Company agrees that it shall provide written notice to Starboard at least one-hundred (100) and 3.1(h) (days prior to the extent it relates to any of the foregoing) shall not apply at any time that (i) the Company fails to comply in all material respects with its obligations under Article 5 hereof, which failure continues unremedied for a period of 10 business days following receipt by the Company of a written notice from the Block Sale Transferee of such failure or (ii) the Block Sale Transferee has relinquished its nomination rights pursuant to Article 5 and all Block Sale Transferee nominated directors have resigned; or (b)]5 in the event that (x) the Board of Directors determines date that the Company should engage in any transaction described in Section 3.1(e)(i) or 3.1(e)(ii), the Block Sale Transferee shall be permitted to participate in such Board of Directors’ approved transaction as a shareholder on the same terms and conditions as any other shareholder of the Company, (y) the Board of Directors determines that the Company should solicit from one or more Persons or enter into discussions with one or more Persons regarding, or invites any other Person or group to make a proposal (without similarly inviting the Block Sale Transferee to make a similar proposal) with respect to an acquisition of (i) all or substantially all of the equity securities or assets of the Company or any of sets for holding its Subsidiaries (by merger, tender offer or otherwise) or (ii) any material assets or businesses of the Company or any of its Subsidiaries, the Block Sale Transferee shall have the right to make a non-public competing proposal to the Board of Directors in compliance with any written procedures generally applicable to Persons making proposals provided by the Company 5 Note to form: enumerated restrictions to be removed if the Block Sale Transferee does not accept the board nomination rights. or the Board of Directors or (z) any third party that is not an Affiliate of the Block Sale Transferee makes a bona fide offer or proposal, with respect to a matter described in Section 3.1(d) or 3.1(e) above (a “Third Party Proposal”), the Block Sale Transferee (A) shall have the right to make a non-public competing proposal to the Board of Directors and may publicly announce that it has made a competing proposal to the Board of Directors so long as such public announcement does not constitute an offer or a solicitation to any recipient thereof and (B) may tender, exchange or otherwise sell or transfer its Company Common Shares (or other equity securities of the Company) to such third party in accordance with the Third Party Proposal; provided, however, that in the case of clauses (y) and (z), the Block Sale Transferee shall be prohibited from participating with, joining in a group with or providing financing to any such third party). [For the avoidance of doubt, any discussions involving the directors nominated by the Block Sale Transferee pursuant to Article 5 hereof (i) at a meeting of the Board of Directors or (ii) with management of the Company, other members of the Board of Directors or any of the Company’s advisors or representatives, in the case of clauses (i) and (ii), while acting in such directors’ capacity as members of the Board of Directors, shall not be deemed to violate any of the provisions of this Article 3.]62013 Annual Meeting.
Appears in 1 contract
Samples: Agreement (Starboard Value LP)
Standstill Provisions. During Subject to Section 2.2, the InterTech Parties agree, on behalf of themselves and their respective Affiliates and Associates, that until the Standstill PeriodPeriod has expired, unless expressly authorized in writing to do so by a majority none of the members Persons comprising the InterTech Parties will, or will permit or suffer any of the Board of Directorstheir Affiliates or Associates to, acting through a committee of directors that qualify as “independent directors” as defined by applicable stock exchange listing rules [(which term, for this purpose, will exclude in any directors nominated by the Block Sale Transferee)]1, the Block Sale Transferee shall not, and shall cause its Affiliates not tomanner, directly or indirectly, acting alone or as part of a group:
(a) subject to Section 2.2, acquire or retain any Beneficial Ownership of any securities of the Company or any securities of any Subsidiary or other Affiliate or Associate of the Company if such acquisition would result in the InterTech Parties and their respective Affiliates and Associates collectively Beneficially Owning 5.0% or more of the then outstanding Company Common Stock;
(b) subject to Section 2.2, make, effect, initiate, cause or in participate in, any way Company Acquisition Transaction (other than one that has been approved by the Board);
(c) make, effect, initiate, cause or participate in in, any solicitation “solicitation” of any proxy [“proxies” (but without regard to the exclusion set forth as those terms are defined in Rule 14a-1(l)(2)(iv) under 14a-1 of the Exchange Act from the definition of “solicitation”)]2 Regulations) or consents with respect to vote any Company Common Shares (or other equity securities of the Company) ; communicate with or seek to advise or influence any Person with respect to the voting of any matter (including, without limitation, Company Common Stock or other securities of the Company; or become a participant in any contested solicitation for the election of directors contest with respect to the Company);
(d) make, encourage or induce any other than solicitations shareholder to make, or acting as a participant intentionally or significantly assist in support of all any way any other shareholder in making, any shareholder proposal in respect of the Company’s nominees [including, without limitation, the nominees of the Block Sale Transferee pursuant support or seek to Article 5]3advise or influence any other shareholder with respect to any shareholder proposal;
(be) form, form or join in a partnership, limited partnership, syndicate or in any way participate in a group (for the avoidance of doubt, the Block Sale Transferee shall not be deemed to have formed, joined in or in any way participated in a group with the Company as a result of the Block Sale Transferee’s execution of this Agreement) other Group with respect to the Company Common Shares Stock or otherwise support or participate in any effort by a third party, with respect to the matters set forth in any of Sections 2.1(a), (b), (c) or other equity securities of the Company(d) above, or deposit any Company Common Shares (or other equity securities of the Company) Stock in a voting trust or similar arrangement or subject any Company Common Shares (or other equity securities of the Company) Stock to any voting agreement or similar arrangement, or grant any proxy with respect to any Company Common Shares (or other equity securities of the Company) (other than to a designated representative of the 1 Note to form: bracketed language to be removed if Block Sale Transferee does not accept the board nomination rights. 2 Note to form: bracketed language to be removed if Block Sale Transferee does not accept the board nomination rights. 3 Note to form: bracketed language to be removed if Block Sale Transferee does not accept the board nomination rights. Company pursuant to a proxy statement of the Company), other than as contemplated by the Governance Agreement or the Stockholders Agreement or the transactions contemplated therebyagreement;
(cf) seek to call, or to request the calling of, or call a special meeting of the stockholders of the Company, nominate or seek to make, nominate any person to the Board or make, a stockholder proposal (whether pursuant seek to Rule 14a-8 under the Exchange Act or otherwise) at have called any meeting of the stockholders shareholders of the Company, or make a request Company for a list of the Company’s stockholders, or[, other than pursuant to the Block Sale Transferee’s nomination rights in accordance with Article 5 of this Agreement,]4 seek election of a representative to the Board of Directors, seek to place a representative on the Board of Directors or seek the removal of any director from the Board of Directors, purpose or otherwise acting aloneact, alone or by participating in a groupconcert with others, to seek to control or influence the governance management, Board, or policies of the Company;
(dg) effect commence, prosecute or intentionally or significantly assist, or seek to effect (includingcause others to commence, without limitationprosecute or intentionally or significantly assist, by entering into any discussionslegal action against the Board or the Company, negotiationseither directly or derivatively, agreements or understandings whether or not legally enforceable with any third Person), offer or propose (whether publicly or otherwise) to effect, or cause or participate in, arising out of or in any way assist relating to the ownership or facilitate any other Person to effect or seek, offer or propose (whether publicly or otherwise) to effect or participate in any acquisition voting of any Company Common Shares (or other equity securities Stock, governance of the Company and/or control of the Company) (or Beneficial Ownership thereof) in excess of the Ownership Limitation, except in accordance with Section 2.1; provided, that, for the avoidance of doubt, the Block Sale Transferee is permitted to Transfer to an unaffiliated third party any Company Common Shares (or other equity securities of the Company) Beneficially Owned by the Block Sale Transferee, subject to the provisions of Article 8 hereof, if applicable;
(eh) effect or seek to effect (including, without limitation, by entering into initiate any discussions, negotiations, agreements or understandings whether or not legally enforceable communication with any third Person), offer customer or propose (whether publicly or otherwise) to effect, or cause or participate in, or in any way assist or facilitate any other Person to effect or seek, offer or propose (whether publicly or otherwise) to effect or participate in (i) any tender offer or exchange offer, merger, acquisition, share exchange or other business combination involving supplier of the Company or any of its Subsidiaries, (ii) any recapitalization, restructuring, liquidation, dissolution or other extraordinary transaction with respect Subsidiaries regarding matters relating to the Company or any of its Subsidiaries with a view towards interfering with or any material portion of its or their businesses, or (iii) any acquisition of any material assets or businesses of otherwise adversely affecting the Company or any of its Subsidiaries;
(f) publicly disclose, or cause or, in a material manner, facilitate the public disclosure (including without limitation through the filing by it of any document or report with the SEC or any other governmental agency or any disclosure to any 4 Note to form: bracketed language to be removed if Block Sale Transferee does not accept the board nomination rights. journalist, member of the media or securities analyst) of any intent, purpose, plan or proposal to obtain any waiver, or consent under, or any amendment of, any of the provisions of Section 2.1, this Section 3.1, or Article 4 (except as described in Section 4.1) or bring any action to (i) contest the validity of Section 2.1, this Section 3.1 or Article 4, or (ii) seek a release from the restrictions contained in Section 2.1, this Section 3.1 or Article 4;
(g) unless required by law, make or issue or cause to be made or issued any public disclosure, announcement or statement (including without limitation the filing of any document or report with the SEC or any other governmental agency or any disclosure to any journalist, member of the media or securities analyst) (i) in support of any solicitation described in paragraph (a) above (other than solicitations by the Company), (ii) in support of any matter described in paragraph (c) above, (iii) concerning any potential matter described in paragraph (d) above; (iv) concerning any potential matter described in paragraph (e) above; or (v) negatively commenting upon the Company’s corporate strategy, business, corporate activities, board of directors or management (for the avoidance of doubt, making any factual statement about the Company’s corporate strategy, business, corporate activities, board of directors or management shall not be prohibited by this Section 3.1(g)(v)); or
(h) enter into any discussions, negotiations, agreements or understandings with any Person with respect to any of the foregoing or advise, assist or seek to persuade others to take any action with respect to any of the foregoing. Notwithstanding the foregoing, (a) [the restrictions in Sections 3.1(d), 3.1(e), 3.1(f), 3.1(g)(iii), 3.1(g)(iv), 3.1(g)(v) and 3.1(h) (to the extent it relates to any of the foregoing) shall not apply at any time that (i) the Company fails to comply in all material respects with its obligations under Article 5 hereof, which failure continues unremedied for a period of 10 business days following receipt by the Company of a written notice from the Block Sale Transferee of such failure or (ii) the Block Sale Transferee has relinquished its nomination rights pursuant to Article 5 and all Block Sale Transferee nominated directors have resigned; or (b)]5 in the event that (x) the Board of Directors determines that the Company should engage in any transaction described in Section 3.1(e)(i) or 3.1(e)(ii), the Block Sale Transferee shall be permitted to participate in such Board of Directors’ approved transaction as a shareholder on the same terms and conditions as any other shareholder of the Company, (y) the Board of Directors determines that the Company should solicit from one or more Persons or enter into discussions with one or more Persons regarding, or invites any other Person or group to make a proposal (without similarly inviting the Block Sale Transferee to make a similar proposal) with respect to an acquisition of (i) all or substantially all of the equity securities or assets of relationship between the Company or any of its Subsidiaries and any such supplier or customer;
(by mergeri) take any action which might force the Company to make a public announcement regarding any of the types of matters set forth in this Section 2.1;
(j) request or propose that the Company (or its directors, tender officers, employees or agents), directly or indirectly, amend or waive any provision of this Section 2.1, including this subsection (j);
(k) agree or offer to take, or encourage or propose (publicly or otherwise) or (ii) the taking of, any material assets or businesses of the Company or action referred to in any of its Subsidiaries, the Block Sale Transferee shall have the right to make a non-public competing proposal to the Board subsections (a) through (j) of Directors in compliance with any written procedures generally applicable to Persons making proposals provided by the Company 5 Note to form: enumerated restrictions to be removed if the Block Sale Transferee does not accept the board nomination rights. or the Board of Directors or this Section 2.1 (z) any third party that is not an Affiliate of the Block Sale Transferee makes a bona fide offer or proposal, with respect to a matter described in Section 3.1(d) or 3.1(e) above (a “Third Party Proposal”), the Block Sale Transferee (A) shall have the right to make a non-public competing proposal to the Board of Directors and may publicly announce that it has made a competing proposal to the Board of Directors so long as such public announcement does not constitute an offer or a solicitation to any recipient thereof and (B) may tender, exchange or otherwise sell or transfer its Company Common Shares (or other equity securities of the Company) to such third party in accordance with the Third Party Proposal; provided, however, that in the case of clauses (y) and (z), the Block Sale Transferee shall be prohibited from participating with, joining in a group with or providing financing to any such third party). [For where for the avoidance of doubt, for purposes of this Section 2.1, references to “subjections (a) through (j)” includes subsection (a) and subsection (j) and all subsections in between them);
(l) assist, induce or encourage any other Person to take any action referred to in any of subsections (a) through (j) of this Section 2.1; or
(m) enter into any discussions involving or arrangements with any third party with respect to the directors nominated by the Block Sale Transferee pursuant taking of any action referred to Article 5 hereof (i) at a meeting of the Board of Directors or (ii) with management of the Company, other members of the Board of Directors or in any of the Company’s advisors or representatives, in the case of clauses subsections (ia) and through (ii), while acting in such directors’ capacity as members of the Board of Directors, shall not be deemed to violate any of the provisions j) of this Article 3.]6Section 2.1.
Appears in 1 contract
Samples: Standstill Agreement (Span America Medical Systems Inc)
Standstill Provisions. During (a) Starboard agrees that, from the date of this Agreement until the earlier of (x) the date that is 15 business days prior to the deadline for the submission of stockholder nominations for the Company’s 2024 Annual Meeting of Stockholders (the “2024 Annual Meeting”) pursuant to the By-Laws, or (y) the date that is 100 days prior to the first anniversary of the 2023 Annual Meeting (the “Standstill Period”), unless expressly authorized in writing to do so by a majority of the members of the Board of Directors, acting through a committee of directors that qualify as “independent directors” as defined by applicable stock exchange listing rules [(which term, for this purpose, will exclude any directors nominated by the Block Sale Transferee)]1, the Block Sale Transferee Starboard shall not, and shall cause each of its controlled Affiliates and Associates not to, in each case directly or indirectly, acting alone or as part of a groupin any manner:
(ai) makeengage in any solicitation or become a “participant” in a “solicitation” (as such terms are defined in Regulation 14A under the Exchange Act) of proxies or consents (including any solicitation of consents that seeks to call a special meeting of stockholders of the Company), in each case with respect to any securities of the Company;
(ii) form, join, or in any way participate in any solicitation “group” (within the meaning of any proxy [(but without regard to the exclusion set forth in Rule 14a-1(l)(2)(ivSection 13(d)(3) under of the Exchange Act from the definition of “solicitation”)]2 to vote any Company Common Shares (or other equity securities of the CompanyAct) with respect to shares of Common Stock (other than a “group” that includes all or some of the members of Starboard, but does not include any matter other entities or persons that are not members of Starboard as of the date hereof); provided, however, that nothing herein shall limit the ability of an Affiliate of Starboard to join the “group” following the execution of this Agreement so long as any such Affiliate agrees in writing to be bound by the terms and conditions of this Agreement;
(includingiii) deposit any shares of Common Stock in any voting trust or subject any shares of Common Stock to any arrangement or agreement with respect to the voting of any shares of Common Stock, without limitationother than any such voting trust, arrangement or agreement solely among the members of Starboard and otherwise in accordance with this Agreement;
(iv) seek or submit, or knowingly encourage any person or entity to seek or submit, nomination(s) in furtherance of a “contested solicitation solicitation” for the appointment, election or removal of directors with respect to the Company)Company or seek, or knowingly encourage or take any other than solicitations action with respect to the appointment, election or acting as a participant removal of any directors, in support of all each case in opposition to the recommendation of the Board; provided, however, that nothing in this Agreement shall prevent Starboard or its Affiliates or Associates from taking actions in furtherance of identifying director candidates in connection with the 2024 Annual Meeting so long as such actions do not create a public disclosure obligation for Starboard or the Company, are not publicly disclosed by Starboard or its representatives, Affiliates or Associates, and are undertaken on a basis reasonably designed to be confidential and in accordance in all material respects with Starboard’s nominees [including, without limitation, normal practices in the nominees of the Block Sale Transferee pursuant to Article 5]3circumstances;
(bv) form(A) make any proposal for consideration by stockholders at a Stockholder Meeting, join in (B) make any offer or in any way participate in a group proposal (for the avoidance of doubt, the Block Sale Transferee shall not be deemed to have formed, joined in with or in any way participated in a group with the Company as a result of the Block Sale Transferee’s execution of this Agreementwithout conditions) with respect to the Company Common Shares any merger, takeover offer, tender (or other equity securities of the Companyexchange) or deposit any Company Common Shares (or other equity securities of the Company) in a voting trust or similar arrangement or subject any Company Common Shares (or other equity securities of the Company) to any voting agreement or similar arrangement, or grant any proxy with respect to any Company Common Shares (or other equity securities of the Company) (other than to a designated representative of the 1 Note to form: bracketed language to be removed if Block Sale Transferee does not accept the board nomination rights. 2 Note to form: bracketed language to be removed if Block Sale Transferee does not accept the board nomination rights. 3 Note to form: bracketed language to be removed if Block Sale Transferee does not accept the board nomination rights. Company pursuant to a proxy statement of the Company), other than as contemplated by the Governance Agreement or the Stockholders Agreement or the transactions contemplated thereby;
(c) seek to call, or to request the calling of, or call a special meeting of the stockholders of the Company, or seek to make, or make, a stockholder proposal (whether pursuant to Rule 14a-8 under the Exchange Act or otherwise) at any meeting of the stockholders of the Company, or make a request for a list of the Company’s stockholders, or[, other than pursuant to the Block Sale Transferee’s nomination rights in accordance with Article 5 of this Agreement,]4 seek election of a representative to the Board of Directors, seek to place a representative on the Board of Directors or seek the removal of any director from the Board of Directors, or otherwise acting alone, or by participating in a group, seek to control or influence the governance or policies of the Company;
(d) effect or seek to effect (including, without limitation, by entering into any discussions, negotiations, agreements or understandings whether or not legally enforceable with any third Person), offer or propose (whether publicly or otherwise) to effect, or cause or participate in, or in any way assist or facilitate any other Person to effect or seek, offer or propose (whether publicly or otherwise) to effect or participate in any acquisition of any Company Common Shares (or other equity securities of the Company) (or Beneficial Ownership thereof) in excess of the Ownership Limitation, except in accordance with Section 2.1; provided, that, for the avoidance of doubt, the Block Sale Transferee is permitted to Transfer to an unaffiliated third party any Company Common Shares (or other equity securities of the Company) Beneficially Owned by the Block Sale Transferee, subject to the provisions of Article 8 hereof, if applicable;
(e) effect or seek to effect (including, without limitation, by entering into any discussions, negotiations, agreements or understandings whether or not legally enforceable with any third Person), offer or propose (whether publicly or otherwise) to effect, or cause or participate in, or in any way assist or facilitate any other Person to effect or seek, offer or propose (whether publicly or otherwise) to effect or participate in (i) any tender offer or exchange offer, merger, acquisition, share exchange recapitalization, restructuring, disposition or other business combination involving the Company or any of its Subsidiariessubsidiaries, (iiC) affirmatively solicit a third party to make an offer or proposal (with or without conditions) with respect to any merger, takeover offer, tender (or exchange) offer, acquisition, recapitalization, restructuring, liquidation, dissolution disposition or other extraordinary transaction with respect to business combination involving the Company or any of its Subsidiaries or any material portion of its or their businessessubsidiaries, or publicly encourage, initiate or support any third party in making such an offer or proposal, (iiiD) publicly comment on any acquisition of third party proposal regarding any material assets merger, takeover offer, tender (or businesses of exchange) offer, acquisition, recapitalization, restructuring, disposition, or other business combination involving the Company or any of its Subsidiaries;
subsidiaries by such third party (f) publicly disclose, or cause or, in a material manner, facilitate the public disclosure provided that this clause (including without limitation through the filing by it of any document or report with the SEC or any other governmental agency or any disclosure to any 4 Note to form: bracketed language to be removed if Block Sale Transferee does not accept the board nomination rights. journalist, member of the media or securities analyst) of any intent, purpose, plan or proposal to obtain any waiver, or consent under, or any amendment of, any of the provisions of Section 2.1, this Section 3.1, or Article 4 (except as described in Section 4.1) or bring any action to (i) contest the validity of Section 2.1, this Section 3.1 or Article 4, or (ii) seek a release from the restrictions contained in Section 2.1, this Section 3.1 or Article 4;
(g) unless required by law, make or issue or cause to be made or issued any public disclosure, announcement or statement (including without limitation the filing of any document or report with the SEC or any other governmental agency or any disclosure to any journalist, member of the media or securities analyst) (i) in support of any solicitation described in paragraph (a) above (other than solicitations by the Company), (ii) in support of any matter described in paragraph (c) above, (iii) concerning any potential matter described in paragraph (d) above; (iv) concerning any potential matter described in paragraph (e) above; or (v) negatively commenting upon the Company’s corporate strategy, business, corporate activities, board of directors or management (for the avoidance of doubt, making any factual statement about the Company’s corporate strategy, business, corporate activities, board of directors or management shall not be prohibited by this Section 3.1(g)(v)); or
(h) enter into any discussions, negotiations, agreements or understandings with any Person with respect to any of the foregoing or advise, assist or seek to persuade others to take any action with respect to any of the foregoing. Notwithstanding the foregoing, (a) [the restrictions in Sections 3.1(d), 3.1(e), 3.1(f), 3.1(g)(iii), 3.1(g)(iv), 3.1(g)(v) and 3.1(h) (to the extent it relates to any of the foregoingD) shall not apply at any time that (i) prevent such public comment after such proposal has become generally known to the Company fails to comply in all material respects with its obligations under Article 5 hereof, which failure continues unremedied for public other than as a period of 10 business days following receipt by the Company result of a written notice from the Block Sale Transferee of such failure or (iidisclosure by Starboard) the Block Sale Transferee has relinquished its nomination rights pursuant to Article 5 and all Block Sale Transferee nominated directors have resigned; or (b)]5 in the event that (x) the Board of Directors determines that the Company should engage in any transaction described in Section 3.1(e)(i) or 3.1(e)(ii), the Block Sale Transferee shall be permitted to participate in such Board of Directors’ approved transaction as a shareholder on the same terms and conditions as any other shareholder of the Company, (y) the Board of Directors determines that the Company should solicit from one or more Persons or enter into discussions with one or more Persons regarding, or invites any other Person or group to make a proposal (without similarly inviting the Block Sale Transferee to make a similar proposal) with respect to an acquisition of (i) all or substantially all of the equity securities or assets of the Company or any of its Subsidiaries (by merger, tender offer or otherwise) or (ii) any material assets or businesses of the Company or any of its Subsidiaries, the Block Sale Transferee shall have the right to make a non-public competing proposal to the Board of Directors in compliance with any written procedures generally applicable to Persons making proposals provided by the Company 5 Note to form: enumerated restrictions to be removed if the Block Sale Transferee does not accept the board nomination rights. or the Board of Directors or (z) any third party that is not an Affiliate of the Block Sale Transferee makes a bona fide offer or proposal, with respect to a matter described in Section 3.1(d) or 3.1(e) above (a “Third Party Proposal”), the Block Sale Transferee (A) shall have the right to make a non-public competing proposal to the Board of Directors and may publicly announce that it has made a competing proposal to the Board of Directors so long as such public announcement does not constitute an offer or a solicitation to any recipient thereof and (B) may tender, exchange or otherwise sell or transfer its Company Common Shares (or other equity securities of the Company) to such third party in accordance with the Third Party Proposal; provided, however, that in the case of clauses (y) and (z), the Block Sale Transferee shall be prohibited from participating with, joining in a group with or providing financing to any such third party). [For the avoidance of doubt, any discussions involving the directors nominated by the Block Sale Transferee pursuant to Article 5 hereof (i) at a meeting of the Board of Directors or (ii) with management of the Company, other members of the Board of Directors or any of the Company’s advisors or representatives, in the case of clauses (i) and (ii), while acting in such directors’ capacity as members of the Board of Directors, shall not be deemed to violate any of the provisions of this Article 3.]6or
Appears in 1 contract
Samples: Shareholder Agreement (Rogers Corp)
Standstill Provisions. During (a) The standstill period (the “Standstill Period”) begins on the date of this Agreement and shall extend until thirty (30) days prior to the deadline for the submission of stockholder nominations for directors for the 2017 Annual Meeting pursuant to the Bylaws. The Engaged Group agrees that during the Standstill Period, unless expressly authorized in writing to do so by a majority neither it nor any of the members of the Board of Directors, acting through a committee of directors that qualify as “independent directors” as defined by applicable stock exchange listing rules [(which term, for this purpose, will exclude any directors nominated by the Block Sale Transferee)]1, the Block Sale Transferee shall notits Affiliates or Associates under its control or direction will, and shall it will cause each of its Affiliates and Associates under its control not to, directly or indirectly, acting in any manner, alone or as part of a groupin concert with others:
(ai) makesolicit, or knowingly encourage or in any way participate engage in any solicitation of of, any proxy [(but without regard to the exclusion set forth proxies or consents or become a “participant” in Rule 14a-1(l)(2)(iv) a “solicitation,” directly or indirectly, as such terms are defined in Regulation 14A under the Exchange Act from the definition of “solicitation”)]2 to vote any Company Common Shares (proxies or other equity securities of the Company) with respect to any matter consents (including, without limitation, any solicitation of consents that seeks to call a special meeting of stockholders or by encouraging or participating in any “withhold” or similar campaign), in each case, with respect to securities of the Company or any securities convertible or exchangeable into or exercisable for any such securities (collectively, “securities of the Company”);
(ii) advise, knowingly encourage, support, instruct or influence any person with respect to any of the matters covered by this Section 2(a) or with respect to the voting or disposition of any securities of the Company at any annual or special meeting of stockholders, except in accordance with Section 1, or seek to do so;
(iii) agree, attempt, seek or propose to deposit any securities of the Company in any voting trust or similar arrangement, or subject any securities of the Company to any arrangement or agreement with respect to the voting thereof, other than any such voting trust, arrangement or agreement solely among the Engaged Group, Affiliates or Associates of the Engaged Group and otherwise in accordance with this Agreement;
(iv) seek or knowingly encourage any person to submit nominations in furtherance of a “contested solicitation solicitation” or take other applicable action for the election or removal of directors with respect to the Company), ;
(v) (A) seek publicly or seek to communicate to any third party (other than solicitations to the executive officers or acting as a participant in support of all directors of the Company’s nominees [including) to have the Company or any of its Affiliates or Associates waive or make amendments to its respective charter, without limitationbylaws or other applicable governing documents, or other actions that may impede or facilitate the nominees acquisition of control of the Block Sale Transferee Company or such Company Affiliate or Associate, (B) seek to cause a class of securities of the Company or any of its Affiliates or Associates to be delisted from, or to cease to be quoted on, any securities exchange, or (C) seek to cause a class of securities of the Company or any of its Affiliates or Associates to become eligible for termination of registration pursuant to Article 5]3Section 12(g)(4) of the Exchange Act;
(bvi) form, join in or in any way participate in a group (for the avoidance of doubtpartnership, the Block Sale Transferee shall not be deemed to have formedlimited partnership, joined in syndicate or in any way participated in other group, including, without limitation, a group as defined under Section 13(d) of the Exchange Act with the Company any person who is not identified on Annex A as a result member of the Block Sale Transferee’s execution of this Agreement) with respect to the Company Common Shares Engaged Group or an Engaged Group Affiliate (or other equity securities of the Company) or deposit any Company Common Shares (or other equity securities of the Company) in such person, a voting trust or similar arrangement or subject any Company Common Shares (or other equity securities of the Company) to any voting agreement or similar arrangement“Third Party”), or grant any proxy with respect to any Company Common Shares (or other equity securities of the Company) (Company or take any other than to a designated representative action that would divest the Engaged Group of the 1 Note ability to form: bracketed language vote or cause to be removed if Block Sale Transferee does not accept the board nomination rights. 2 Note to form: bracketed language to be removed if Block Sale Transferee does not accept the board nomination rights. 3 Note to form: bracketed language to be removed if Block Sale Transferee does not accept the board nomination rights. Company pursuant to a proxy statement voted its shares of the Company), other than as contemplated by the Governance Agreement Common Stock (or the Stockholders Agreement or the transactions contemplated therebyinterest in such shares) in accordance with this Agreement;
(c) seek to call, or to request the calling of, or call a special meeting of the stockholders of the Company, or seek to make, or make, a stockholder proposal (whether pursuant to Rule 14a-8 under the Exchange Act or otherwise) at any meeting of the stockholders of the Company, or make a request for a list of the Company’s stockholders, or[, other than pursuant to the Block Sale Transferee’s nomination rights in accordance with Article 5 of this Agreement,]4 seek election of a representative to the Board of Directors, seek to place a representative on the Board of Directors or seek the removal of any director from the Board of Directors, or otherwise acting alone, or by participating in a group, seek to control or influence the governance or policies of the Company;
(dvii) effect or seek to effect (including, without limitation, by entering into any discussions, negotiations, agreements or understandings whether or not legally enforceable with any third Person)effect, offer or propose (whether publicly or otherwise) to effect, or cause or participate in, or in any way assist or facilitate any other Person person to effect or seek, offer or propose (whether publicly or otherwise) to effect or participate in any acquisition of any Company Common Shares (or other equity securities of the Company) (or Beneficial Ownership thereof) in excess of the Ownership Limitation, except in accordance with Section 2.1; provided, that, for the avoidance of doubt, the Block Sale Transferee is permitted to Transfer to an unaffiliated third party any Company Common Shares (or other equity securities of the Company) Beneficially Owned by the Block Sale Transferee, subject to the provisions of Article 8 hereof, if applicable;
(e) effect or seek to effect (including, without limitation, by entering into any discussions, negotiations, agreements or understandings whether or not legally enforceable with any third Person), offer or propose (whether publicly or otherwise) to effect, or cause or participate in, or in any way assist or facilitate any other Person to effect or seek, offer or propose (whether publicly or otherwise) to effect or participate in (i) any tender offer or exchange offer, merger, consolidation, acquisition, scheme, arrangement, business combination, recapitalization, reorganization, sale or acquisition of assets, liquidation, dissolution, extraordinary dividend, significant share exchange repurchase or other business combination extraordinary transaction involving the Company or any of its Subsidiaries, (ii) any recapitalization, restructuring, liquidation, dissolution subsidiaries or other extraordinary transaction with respect to the Company joint ventures or any of its Subsidiaries or any material portion of its or their businessesrespective securities (each, an “Extraordinary Transaction”), or (iii) make any acquisition of any material assets public statement or businesses of the Company or any of its Subsidiaries;
(f) publicly disclose, or cause or, in a material manner, facilitate the public disclosure (including without limitation through the filing by it of any document or report with the SEC or any other governmental agency or any disclosure to any 4 Note to form: bracketed language to be removed if Block Sale Transferee does not accept the board nomination rights. journalist, member of the media or securities analyst) of regarding any intent, purpose, plan or proposal with respect to obtain the Board, the Company, its management, policies or affairs or any of its securities or assets (including with respect to an Extraordinary Transaction) or this Agreement, including any intent, purpose, plan or proposal that is conditioned on, or would require waiver, amendment, nullification or consent under, or any amendment invalidation of, any provision of this Agreement or take any action that could require the Company to make any public disclosure relating to any such intent, purpose, plan, proposal or condition; provided, however, that this clause shall not preclude the tender by the Engaged Group or an Engaged Group Affiliate of any securities of the provisions Company into any tender or exchange offer or vote with respect to any Extraordinary Transaction approved by the Board; provided, further, that this clause shall not preclude the Engaged Group from making a public statement or disclosure with respect to how it intends to vote, and its reasons for so voting, on the approval or disapproval of Section 2.1, this Section 3.1, or Article 4 (except as described in Section 4.1) or bring any action to (i) contest an Extraordinary Transaction announced by the validity of Section 2.1, this Section 3.1 or Article 4, or (ii) seek a release from the restrictions contained in Section 2.1, this Section 3.1 or Article 4Company;
(gviii) unless required (A) call or seek to call or request the call of any meeting of stockholders, including by lawwritten consent, (B) seek, alone or in concert with others, representation on, or nominate any candidate to, the Board, except as specifically set forth in Section 1, (C) seek the removal of any member of the Board, (D) solicit consents from stockholders or otherwise act or seek to act by written consent, (E) conduct a referendum of stockholders or (F) make a request for any stockholder list or issue other similar Company books and records request in its capacity as a stockholder;
(ix) except following unanimous approval of the Board, purchase or cause to be made purchased or issued any public disclosure, announcement otherwise acquire or statement (including without limitation the filing agree to acquire beneficial ownership of any document Common Stock or report with the SEC or any other governmental agency or any disclosure to any journalist, member of the media or securities analyst) (i) in support of any solicitation described in paragraph (a) above (other than solicitations by the Company), (ii) in support of any matter described in paragraph (c) above, (iii) concerning any potential matter described in paragraph (d) above; (iv) concerning any potential matter described in paragraph (e) above; or (v) negatively commenting upon the Company’s corporate strategy, business, corporate activities, board of directors or management (for the avoidance of doubt, making any factual statement about the Company’s corporate strategy, business, corporate activities, board of directors or management shall not be prohibited by this Section 3.1(g)(v)); or
(h) enter into any discussions, negotiations, agreements or understandings with any Person with respect to any of the foregoing or advise, assist or seek to persuade others to take any action with respect to any of the foregoing. Notwithstanding the foregoing, (a) [the restrictions in Sections 3.1(d), 3.1(e), 3.1(f), 3.1(g)(iii), 3.1(g)(iv), 3.1(g)(v) and 3.1(h) (to the extent it relates to any of the foregoing) shall not apply at any time that (i) the Company fails to comply in all material respects with its obligations under Article 5 hereof, which failure continues unremedied for a period of 10 business days following receipt by the Company of a written notice from the Block Sale Transferee of such failure or (ii) the Block Sale Transferee has relinquished its nomination rights pursuant to Article 5 and all Block Sale Transferee nominated directors have resigned; or (b)]5 in the event that (x) the Board of Directors determines that the Company should engage in any transaction described in Section 3.1(e)(i) or 3.1(e)(ii), the Block Sale Transferee shall be permitted to participate in such Board of Directors’ approved transaction as a shareholder on the same terms and conditions as any other shareholder of the Company, or any securities convertible into or exchangeable for Common Stock, if, in any such case immediately after the taking of such action, the Engaged Group together with its Affiliates and Associates would, in the aggregate, beneficially own more than 19.99% of the then outstanding shares of Common Stock;
(yx) sell, offer or agree to sell directly or indirectly other than through the Board open market, through swap or hedging transactions or otherwise, the securities of Directors determines that the Company should solicit (including any rights decoupled from one the underlying securities) held by the Engaged Group to any Third Party unless (A) such Third Party is a passive investor that has not filed a Schedule 13D and would not as a result of the purchase of the securities of the Company be required to file a Schedule 13D and (B) such sale, offer, or agreement to sell would not knowingly result in such Third Party, together with its Affiliates, owning, controlling or otherwise having any beneficial or other ownership interest in the aggregate of 4.99% or more Persons of the shares of Common Stock outstanding at such time or enter into discussions would increase the beneficial or other ownership interest of any Third Party who, together with one its Affiliates, has a beneficial or other ownership interest in the aggregate of 4.99% or more Persons regarding, or invites any other Person or group to make a proposal (without similarly inviting the Block Sale Transferee to make a similar proposal) with respect to an acquisition of (i) all or substantially all of the equity securities shares of Common Stock outstanding at such time, except in each case in a transaction approved by the Board;
(xi) institute, solicit or assets of join, as a party, any litigation, arbitration or other proceeding against the Company or any of its Subsidiaries current or former directors or officers (including derivative actions), other than (A) litigation by mergerthe Engaged Group to enforce the provisions of this Agreement, tender offer (B) counterclaims with respect to any proceeding initiated by, or otherwise) or (ii) any material assets or businesses of on behalf of, the Company or any of its SubsidiariesAffiliates against the Engaged Group, the Block Sale Transferee New Nominees or any Engaged Replacement Director and (C) the exercise of statutory appraisal rights; provided, that the foregoing shall have the right to make a non-public competing proposal to the Board of Directors in compliance with not prevent any written procedures generally applicable to Persons making proposals provided by the Company 5 Note to form: enumerated restrictions to be removed if the Block Sale Transferee does not accept the board nomination rights. or the Board of Directors or (z) any third party that is not an Affiliate member of the Block Sale Transferee makes Engaged Group from responding to or complying with a bona fide offer validly issued legal process;
(xii) engage in any short sale or proposalpurchase, sale or grant of any option, warrant, convertible security, stock appreciation right or other similar right (including, without limitation, any put or call option or swap transaction) with respect to any security (other than a matter described broad-based market basket or index) that includes, relates to or derives any significant part of its value from a decline in Section 3.1(d) the market price or 3.1(e) above (a “Third Party Proposal”), value of the Block Sale Transferee (A) shall have the right to make a non-public competing proposal to the Board of Directors and may publicly announce that it has made a competing proposal to the Board of Directors so long as such public announcement does not constitute an offer or a solicitation to any recipient thereof and (B) may tender, exchange or otherwise sell or transfer its Company Common Shares (or other equity securities of the Company, or engage in any securities lending transaction, repurchase transaction, rehypothecation or other similar transaction involving the securities of the Company;
(xiii) enter into any negotiations, arrangements, understanding or agreements (whether written or oral) with, or advise, finance, assist, seek to such third party in accordance with the persuade or knowingly encourage, any Third Party Proposalto take any action or make any statement in connection with any of the foregoing, or make any investment in or enter into any arrangement with any other person that engages, or offers or proposes to engage, in any of the foregoing, or otherwise take or cause any action or make any statement inconsistent with any of the foregoing; provided, however, that to the extent received during the Standstill Period, this Section 2(a)(xiii) shall not limit the ability of the Engaged Group to receive unsolicited inbound communications in a “listen only” capacity from third parties interested in a potential transaction with the case of clauses Company (in no event, however, may the Engaged Group (or its Affiliates or Associates) participate in, directly, or indirectly, any outbound communications) provided that (x) the Engaged Group (and its Affiliates and Associates) shall not in any way respond to such inbound communications/telephone calls, (y) the Engaged Group shall refer any such inbound communication to the Company’s Chief Executive Officer, and (z)) the Engaged Group shall immediately after any such inbound communication contact the Company’s Chief Executive Officer and inform such officer of such communication; or
(xiv) take any action challenging the validity or enforceability of this Section 2 or this Agreement, or make or publicly advance any request or proposal that the Block Sale Transferee shall be prohibited from participating withCompany or Board amend, joining modify or waive any provision of this Agreement (provided, that the Engaged Group may make confidential requests to the Board to amend, modify or waive any provision of this Section 2, which the Board may accept or reject in its sole discretion, so long as any such request is not publicly disclosed by the Engaged Group and is made by the Engaged Group in a group with or providing financing to any such third party). [For manner that does not require the avoidance of doubt, any discussions involving the directors nominated public disclosure thereof by the Block Sale Transferee pursuant to Article 5 hereof (i) at a meeting of the Board of Directors or (ii) with management of the Company, the Engaged Group or any other members of person). Notwithstanding anything to the Board of Directors or contrary, nothing in this Agreement shall restrict any of the Company’s advisors New Nominees or representatives, Engaged Director Replacements from taking any action in the case of clauses (i) and (ii), while acting in such directors’ his or her capacity as members a director of the Board of Directors, shall not be deemed Company in a manner consistent with his or her fiduciary duties to violate any of the provisions of this Article 3.]6Company.
Appears in 1 contract
Standstill Provisions. During (a) The Icahn Group agrees that, unless the Company or the Board has materially breached any material provision of this Agreement and failed to cure such breach within five (5) business days following the receipt of written notice from the Icahn Group specifying any such breach, from the date of this Agreement until the later of (x) the date that is thirty (30) calendar days prior to the deadline for the submission of stockholder nominations for the Company’s 2021 annual meeting of stockholders or (y) the date thirty (30) days following the date that no Icahn Appointee is on the Board and the Icahn Group has no right to designate a Replacement Director (including if the Icahn Group has irrevocably waived such right in writing) (the “Standstill Period”), unless expressly authorized in writing to do so by a majority neither it nor any of the members of the Board of Directors, acting through a committee of directors that qualify as “independent directors” as defined by applicable stock exchange listing rules [(which term, for this purpose, will exclude any directors nominated by the Block Sale Transferee)]1, the Block Sale Transferee shall notits controlled Affiliates or Associates will, and shall it will cause each of its controlled Affiliates and Associates not to, directly or indirectly, acting alone or as part of a groupin any manner:
(a) make, or in any way participate in any solicitation of any proxy [(but without regard to the exclusion set forth in Rule 14a-1(l)(2)(iv) under the Exchange Act from the definition of “solicitation”)]2 to vote any Company Common Shares (or other equity securities of the Company) with respect to any matter (including, without limitation, any contested solicitation for the election of directors with respect to the Company), other than solicitations or acting as a participant in support of all of the Company’s nominees [including, without limitation, the nominees of the Block Sale Transferee pursuant to Article 5]3;
(b) form, join in or in any way participate in a group (for the avoidance of doubt, the Block Sale Transferee shall not be deemed to have formed, joined in or in any way participated in a group with the Company as a result of the Block Sale Transferee’s execution of this Agreement) with respect to the Company Common Shares (or other equity securities of the Company) or deposit any Company Common Shares (or other equity securities of the Company) in a voting trust or similar arrangement or subject any Company Common Shares (or other equity securities of the Company) to any voting agreement or similar arrangement, or grant any proxy with respect to any Company Common Shares (or other equity securities of the Company) (other than to a designated representative of the 1 Note to form: bracketed language to be removed if Block Sale Transferee does not accept the board nomination rights. 2 Note to form: bracketed language to be removed if Block Sale Transferee does not accept the board nomination rights. 3 Note to form: bracketed language to be removed if Block Sale Transferee does not accept the board nomination rights. Company pursuant to a proxy statement of the Company), other than as contemplated by the Governance Agreement or the Stockholders Agreement or the transactions contemplated thereby;
(c) seek to call, or to request the calling of, or call a special meeting of the stockholders of the Company, or seek to make, or make, a stockholder proposal (whether pursuant to Rule 14a-8 under the Exchange Act or otherwise) at any meeting of the stockholders of the Company, or make a request for a list of the Company’s stockholders, or[, other than pursuant to the Block Sale Transferee’s nomination rights in accordance with Article 5 of this Agreement,]4 seek election of a representative to the Board of Directors, seek to place a representative on the Board of Directors or seek the removal of any director from the Board of Directors, or otherwise acting alone, or by participating in a group, seek to control or influence the governance or policies of the Company;
(di) effect or seek to effect (including, without limitation, by entering into any discussions, negotiations, agreements or understandings whether or not legally enforceable with any third Personunderstandings), offer or propose (whether publicly or otherwiseprivately) to effect, or cause or participate in, or in any way knowingly assist encourage, support or facilitate any other Person person to effect or seek, offer or propose (whether publicly or otherwise) to effect or participate in any acquisition of any Company Common Shares (or other equity securities of the Company) (following involving the Company or Beneficial Ownership thereof) in excess any of its subsidiaries or its or their securities or a material amount of assets or businesses of the Ownership Limitation, except in accordance with Section 2.1; provided, that, for the avoidance of doubt, the Block Sale Transferee is permitted to Transfer to an unaffiliated third party any Company Common Shares (or other equity securities of the Company) Beneficially Owned by the Block Sale Transferee, subject to the provisions of Article 8 hereof, if applicable;
(e) effect or seek to effect (including, without limitation, by entering into any discussions, negotiations, agreements or understandings whether or not legally enforceable with any third Person), offer or propose (whether publicly or otherwise) to effect, or cause or participate in, or in any way assist or facilitate any other Person to effect or seek, offer or propose (whether publicly or otherwise) to effect or participate in (i) and its subsidiaries: any tender offer or exchange offer, merger, acquisition, share exchange business combination, reorganization, restructuring, recapitalization, sale or acquisition of material assets, liquidation or dissolution (each and collectively, an “Extraordinary Transaction”), or publicly comment, or privately comment in a manner reasonably expected not to be held in confidence, on any third party proposal regarding any Extraordinary Transaction by any third party prior to or following such proposal becoming public (other business combination involving than a Permitted Extraordinary Transaction (as defined below) that has been publicly announced); provided, however, that the Icahn Appointees may raise such matters and participate in discussions of such matters as they occur in the ordinary course during meetings of the Board or committees thereof; provided that the Icahn Group shall be permitted to sell or tender their shares of Common Stock, and otherwise receive consideration, pursuant to any Extraordinary Transaction so long as no member of the Icahn Group has assisted, encouraged, supported or facilitated (whether publicly or privately) such Extraordinary Transaction; and provided further that (A) if a third party (other than the Icahn Group or an Icahn Affiliate) commences an Extraordinary Transaction for all of the outstanding shares of Common Stock that is approved by the Board or recommended by the Board in its Recommendation Statement on Schedule 14D-9 (a “Permitted Extraordinary Transaction”), then the Icahn Group shall similarly be permitted to make an offer for the Company or any commence a tender offer or exchange offer for all of the outstanding Common Shares at the same or higher consideration per share, provided that the foregoing (i) will not relieve the Icahn Group of its Subsidiaries, obligations under the Confidentiality Agreement and (ii) will not be deemed to require the Company to make any recapitalizationpublic disclosures and (B) the Company may waive the restrictions in this Section 2(a)(i) with the approval of the Board (provided that the Icahn Appointees shall be recused from the consideration and vote with respect to any such waiver).
(ii) acquire, restructuringoffer or propose to acquire any voting securities (or beneficial ownership thereof), liquidationor rights or options to acquire any voting securities (or beneficial ownership thereof) of the Company if after any such case, dissolution immediately after the taking of such action the Icahn Group, together with its respective Affiliates, would in the aggregate, beneficially own more than twenty percent (20%) of the then outstanding Common Stock; provided that, for purposes of this Section, no Person shall be, or be deemed to be, the “beneficial owner” of, or to “beneficially own,” any securities beneficially owned by any director of the Company to the extent such securities were acquired directly from the Company by such director as or pursuant to director compensation for serving as a director of the Company;
(iii) engage in any solicitation of proxies or consents or become a “participant” in a “solicitation” (as such terms are defined in Regulation 14A under the Exchange Act) of proxies or consents (including, without limitation, any solicitation of consents that seeks to call a special meeting of stockholders), in each case, with respect to securities of the Company;
(iv) form, join or in any way participate in any “group” (within the meaning of Section 13(d)(3) of the Exchange Act) with respect to the shares of Common Stock (other than a “group” that includes all or some of the entities or persons identified on Exhibit A, but does not include any other entities or persons not identified on Exhibit A as of the date hereof); provided, however, that nothing herein shall limit the ability of an Affiliate of the Icahn Group to join the “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;
(v) grant any proxy, consent or other extraordinary transaction authority to vote with respect to any matters (other than to the named proxies included in the Company’s proxy card for any annual meeting or special meeting of stockholders) or deposit any shares of Common Stock in any voting trust or subject any shares of Common Stock to any arrangement or agreement with respect to the voting of any shares of Common Stock, other than any such voting trust, arrangement or agreement solely among the members of the Icahn Group and otherwise in accordance with this Agreement;
(vi) seek or submit, or encourage any person or entity to seek or submit, nomination(s) in furtherance of a “contested solicitation” for the appointment, election or removal of directors with respect to the Company or seek, encourage or take any of its Subsidiaries other action with respect to the appointment, election or any material portion of its or their businesses, or (iii) any acquisition removal of any material assets directors;
(vii) (A) make any proposal for consideration by stockholders at any annual or businesses special meeting of the Company or through any written consent of stockholders or (B) call or seek to call a special meeting of stockholders or act by written consent;
(viii) seek, alone or in concert with others, representation on the Board, except as specifically permitted in Section 1;
(ix) seek to advise, encourage, support or influence any person or entity with respect to the voting or disposition of any securities of the Company at any annual or special meeting of stockholders or consent solicitation, except in accordance with Section 1;
(x) seek to call any special meeting of the Company or make any request under Section 220 of the Delaware Corporations Law or other applicable legal provisions regarding inspection of books and records or other materials (including stockholder list materials) of the Company of any of its Subsidiariessubsidiaries;
(fxi) publicly discloseinstitute, solicit, assist or cause orjoin, in as a material manner, facilitate the public disclosure (including without limitation through the filing by it of any document or report with the SEC or any other governmental agency or any disclosure to any 4 Note to form: bracketed language to be removed if Block Sale Transferee does not accept the board nomination rights. journalist, member of the media or securities analyst) of any intent, purpose, plan or proposal to obtain any waiver, or consent under, or any amendment ofparty, any of litigation, arbitration or other proceeding against or involving the provisions of Section 2.1, this Section 3.1, or Article 4 (except as described in Section 4.1) or bring any action to (i) contest the validity of Section 2.1, this Section 3.1 or Article 4, or (ii) seek a release from the restrictions contained in Section 2.1, this Section 3.1 or Article 4;
(g) unless required by law, make or issue or cause to be made or issued any public disclosure, announcement or statement (including without limitation the filing of any document or report with the SEC or any other governmental agency or any disclosure to any journalist, member of the media or securities analyst) (i) in support of any solicitation described in paragraph (a) above Company (other than solicitations by the Company), (ii) in support of any matter described in paragraph (c) above, (iii) concerning any potential matter described in paragraph (d) above; (iv) concerning any potential matter described in paragraph (e) above; or (v) negatively commenting upon the Company’s corporate strategy, business, corporate activities, board of directors or management (for the avoidance of doubt, making any factual statement about the Company’s corporate strategy, business, corporate activities, board of directors or management shall not be prohibited by to enforce its rights under this Section 3.1(g)(v)Agreement); or
(hxii) enter into make any discussionsrequest or submit any proposal to amend the terms of this Agreement other than through non‑public communications with the Company that would not be reasonably determined to trigger public disclosure obligations for any Party.
(b) Except as expressly provided in Section 1 or Section 2(a), negotiationsthe Icahn Group shall be entitled to (i) vote the shares of Common Stock that it beneficially owns as it determines in its sole discretion and (ii) disclose, agreements publicly or understandings with any Person otherwise, how it intends to vote or act with respect to any of the foregoing or advise, assist or seek to persuade others to take any action with respect to any of the foregoing. Notwithstanding the foregoing, (a) [the restrictions in Sections 3.1(d), 3.1(e), 3.1(f), 3.1(g)(iii), 3.1(g)(iv), 3.1(g)(v) and 3.1(h) (to the extent it relates to any of the foregoing) shall not apply at any time that (i) the Company fails to comply in all material respects with its obligations under Article 5 hereof, which failure continues unremedied for a period of 10 business days following receipt by the Company of a written notice from the Block Sale Transferee of such failure or (ii) the Block Sale Transferee has relinquished its nomination rights pursuant to Article 5 and all Block Sale Transferee nominated directors have resigned; or (b)]5 in the event that (x) the Board of Directors determines that the Company should engage in any transaction described in Section 3.1(e)(i) or 3.1(e)(ii), the Block Sale Transferee shall be permitted to participate in such Board of Directors’ approved transaction as a shareholder on the same terms and conditions as any other shareholder securities of the Company, (y) any stockholder proposal or other matter to be voted on by the Board of Directors determines that the Company should solicit from one or more Persons or enter into discussions with one or more Persons regarding, or invites any other Person or group to make a proposal (without similarly inviting the Block Sale Transferee to make a similar proposal) with respect to an acquisition of (i) all or substantially all of the equity securities or assets stockholders of the Company or any and the reasons therefor.
(c) Nothing in this Agreement shall be deemed to limit the exercise in good faith by an Icahn Appointee of its Subsidiaries (by merger, tender offer or otherwise) or (ii) any material assets or businesses such person’s fiduciary duties solely in such person’s capacity as a director of the Company or any of its Subsidiaries, the Block Sale Transferee shall have the right to make a non-public competing proposal to the Board of Directors in compliance with any written procedures generally applicable to Persons making proposals provided by the Company 5 Note to form: enumerated restrictions to be removed if the Block Sale Transferee does not accept the board nomination rights. or the Board of Directors or (z) any third party that is not an Affiliate of the Block Sale Transferee makes a bona fide offer or proposal, with respect to a matter described in Section 3.1(d) or 3.1(e) above (a “Third Party Proposal”), the Block Sale Transferee (A) shall have the right to make a non-public competing proposal to the Board of Directors and may publicly announce that it has made a competing proposal to the Board of Directors so long as such public announcement does not constitute an offer or a solicitation to any recipient thereof and (B) may tender, exchange or otherwise sell or transfer its Company Common Shares (or other equity securities of the Company) to such third party in accordance with the Third Party Proposal; provided, however, that in the case of clauses (y) and (z), the Block Sale Transferee shall be prohibited from participating with, joining in a group manner consistent with or providing financing to any such third party). [For the avoidance of doubt, any discussions involving the directors nominated by the Block Sale Transferee pursuant to Article 5 hereof (i) at a meeting of the Board of Directors or (ii) with management of the Company, other members of the Board of Directors or any of the Companyperson’s advisors or representatives, in the case of clauses (i) and (ii), while acting in such directors’ capacity as members of the Board of Directors, shall not be deemed to violate any of the provisions of obligations under this Article 3.]6Agreement.
Appears in 1 contract
Standstill Provisions. During the period commencing with the execution and delivery of this Agreement and ending on the date that is 30 days prior to the last date for which notice of a stockholder’s intention to nominate any individual as a director of the Company at the 2017 Annual Meeting must be received by the Company (the “Standstill Period”), unless expressly authorized in writing to do so by a majority of the members of the Board of Directors, acting through a committee of directors that qualify as “independent directors” as defined by applicable stock exchange listing rules [(which term, for this purpose, will exclude any directors nominated by the Block Sale Transferee)]1, the Block Sale Transferee SRS shall not, and shall cause its Affiliates not to, directly or indirectly, acting in any manner (whether alone or as part in concert with others), take any of a group:the following actions (unless specifically permitted to do so in writing in advance by the Board):
(a) makeacquire, offer to acquire, or in any way participate in any solicitation of any proxy [(but without regard cause to the exclusion set forth in Rule 14a-1(l)(2)(iv) under the Exchange Act from the definition of “solicitation”)]2 to vote any Company Common Shares (be acquired Beneficial Ownership of, or other equity securities of the Company) with respect to any matter (including, without limitationa Synthetic Long Position in, any contested solicitation Voting Securities such that immediately following such transaction SRS would collectively have Beneficial Ownership (including any rights or options to own or acquire any Voting Securities (whether such right or option is exercisable immediately or only after the passage of time or upon the satisfaction of one or more conditions)) of more than 20,000,000 (as adjusted for the election of directors with respect to the Company)stock splits, other than solicitations or acting as a participant in support of all stock dividends, reverse stock splits and similar transactions) of the Company’s nominees [including, without limitation, the nominees of the Block Sale Transferee pursuant to Article 5]3issued and outstanding Voting Securities;
(b) form, join in solicit proxies or in written consents of stockholders or conduct any way participate in a group other type of referendum (for the avoidance of doubt, the Block Sale Transferee shall not be deemed to have formed, joined in binding or in any way participated in a group with the Company as a result of the Block Sale Transferee’s execution of this Agreementnon-binding) 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 Company Common Shares Securities Exchange Act of 1934, as amended (the “Exchange Act”)), in or assist, advise, knowingly encourage or knowingly influence any Third Party in any “solicitation” of any proxy, consent or other equity securities of authority (as such terms are defined under the Company) or deposit any Company Common Shares (or other equity securities of the Company) in a voting trust or similar arrangement or subject any Company Common Shares (or other equity securities of the CompanyExchange Act) to vote any voting agreement or similar arrangement, or grant any proxy with respect to any Company Common Shares (or other equity securities of the Company) Voting Securities (other than to a designated representative of such advice, encouragement or influence that is consistent with the 1 Note to form: bracketed language to be removed if Block Sale Transferee does not accept the board nomination rights. 2 Note to form: bracketed language to be removed if Block Sale Transferee does not accept the board nomination rights. 3 Note to form: bracketed language to be removed if Block Sale Transferee does not accept the board nomination rights. Company pursuant to a proxy statement of the CompanyBoard’s recommendation in connection with such matter), other than as contemplated by the Governance Agreement or the Stockholders Agreement or the transactions contemplated thereby;
(c) seek to call, other than through open market or to request block trade brokered sale transactions where the calling of, or call a special meeting identity of the stockholders purchaser is unknown to SRS, sell, offer or agree to sell any Voting Securities of the CompanyCompany to any Third Party that, or seek to makethe knowledge of SRS after due inquiry, or make, a stockholder proposal (whether pursuant to Rule 14a-8 under the Exchange Act or otherwisei) at any meeting has aggregate Beneficial Ownership (together with its Affiliates and Associates) of more than 4.9% of the stockholders issued and outstanding Common Stock or (ii) would result in such Third Party having aggregate Beneficial Ownership (together with its Affiliates and Associates) of more than 4.9% of the Company, or make a request for a list of the Company’s stockholders, or[, other than pursuant to the Block Sale Transferee’s nomination rights in accordance with Article 5 of this Agreement,]4 seek election of a representative to the Board of Directors, seek to place a representative on the Board of Directors or seek the removal of any director from the Board of Directors, or otherwise acting alone, or by participating in a group, seek to control or influence the governance or policies of the Companyissued and outstanding Common Stock;
(d) effect or seek to effect (including, without limitation, by entering into any discussions, negotiations, agreements or understandings whether or not legally enforceable with any third Person)effect, offer or propose (whether publicly or otherwise) to effect, or cause or participate in, or in any way assist assist, facilitate or facilitate encourage any other Person to effect or seek, offer or propose (whether publicly or otherwise) to effect or participate in any acquisition of any Company Common Shares (or other equity securities of the Company) (or Beneficial Ownership thereof) in excess of the Ownership Limitation, except in accordance with Section 2.1; provided, that, for the avoidance of doubt, the Block Sale Transferee is permitted to Transfer to an unaffiliated third party any Company Common Shares (or other equity securities of the Company) Beneficially Owned by the Block Sale Transferee, subject to the provisions of Article 8 hereof, if applicable;
(e) effect or seek to effect (including, without limitation, by entering into any discussions, negotiations, agreements or understandings whether or not legally enforceable with any third Person), offer or propose (whether publicly or otherwise) to effect, or cause or participate in, or in any way assist or facilitate any other Person to effect or seek, offer or propose (whether publicly or otherwise) to effect or participate in (i) any tender offer or exchange offer, merger, consolidation, acquisition, share exchange or other scheme, arrangement, business combination involving the Company or any of its Subsidiariescombination, (ii) any recapitalization, restructuringreorganization, sale or acquisition of assets, liquidation, dissolution or other extraordinary transaction with respect to involving the Company or any of its Subsidiaries subsidiaries or any material portion of their respective securities (each, an “Extraordinary Transaction”) other than an Extraordinary Transaction approved by the Board; provided that nothing in this paragraph (d) shall preclude or prohibit SRS (or its Affiliates) from tendering into a tender or their businesses, exchange offer;
(e) (i) call or (iii) any acquisition of any material assets or businesses of seek the Company or any other Person to call any meeting of its Subsidiariesstockholders, including by written consent, (ii) seek representation on, or nominate any candidate to, the Board (except as expressly provided by this Agreement), (iii) nominate any candidate to the board of directors of any Competitor unless such candidate is independent from SRS and SRS takes all appropriate acts to prevent such third party from providing any competitively sensitive information to SRS, (iv) seek the removal of any member of the Board or (v) make any proposal at any annual or special meeting of the Company’s stockholders;
(f) publicly disclosetake any public action in support of or make any public proposal or request that constitutes or relates to: (i) advising, controlling, changing or influencing the Board or management of the Company, including any plans or proposals to change the number or term of directors or to fill any vacancies on the Board, (ii) any material change in the capitalization, stock repurchase programs and practices, capital allocation programs and practices or dividend policy of the Company, (iii) any other material change in the Company’s management, business or corporate structure, (iv) seeking to have the Company waive or make amendments or modifications to the Company’s certificate of incorporation or bylaws, or cause or, in a material manner, other actions that may impede or facilitate the public disclosure acquisition of control of the Company by any Person, (including without limitation through v) causing a class of securities of the filing by it of any document or report with the SEC or any other governmental agency or any disclosure to any 4 Note to form: bracketed language Company to be removed if Block Sale Transferee does not accept the board nomination rights. journalistdelisted from, member or to cease to be authorized to be quoted on, any securities exchange or (vi) causing a class of securities of the media or securities analystCompany to become eligible for termination of registration pursuant to Section 12(g)(4) of the Exchange Act;
(g) make any public disclosure, announcement or statement regarding any intent, purpose, plan or proposal with respect to obtain any waiverthe Board, the Company, its management, policies or consent under, or any amendment ofaffairs, any of its securities or assets or this Agreement that is inconsistent with the provisions of Section 2.1, this Section 3.1, or Article 4 (except as described in Section 4.1) or bring any action to (i) contest the validity of Section 2.1, this Section 3.1 or Article 4, or (ii) seek a release from the restrictions contained in Section 2.1, this Section 3.1 or Article 4Agreement;
(gh) unless required by lawform or join in a partnership, make limited partnership, syndicate or issue or cause to be made or issued any public disclosureother group, announcement or statement (including without limitation the filing of any document or report with the SEC or any other governmental agency or any disclosure to any journalist, member a “group” as defined under Section 13(d) of the media or securities analyst) (i) in support of any solicitation described in paragraph (a) above (other than solicitations by Exchange Act, with respect to the Company), (ii) in support of any matter described in paragraph (c) above, (iii) concerning any potential matter described in paragraph (d) above; (iv) concerning any potential matter described in paragraph (e) above; or (v) negatively commenting upon the Company’s corporate strategy, business, corporate activities, board of directors or management Voting Securities (for the avoidance of doubt, making excluding any factual statement about group composed solely of SRS and its Affiliates);
(i) make any request for stockholder list materials or other books and records of the Company’s corporate strategyCompany under Section 220 of the Delaware General Corporation Law or otherwise;
(j) institute, businesssolicit or join, corporate activitiesas a party, board any litigation, arbitration or other proceeding (including any derivative action) against the Company or any of its future, current or former directors or management officers or employees (provided, that nothing shall not be prohibited prevent SRS from bringing litigation to enforce the provisions of this Agreement or being a party to a class action instituted by this Section 3.1(g)(va Third Party without the assistance or encouragement of SRS)); or;
(hk) enter into any discussions, negotiations, agreements agreements, or understandings with any Person with respect to any of the foregoing or advise, assist or seek to persuade others to take any action Third Party with respect to any of the foregoing. Notwithstanding the foregoing, (a) [the restrictions in Sections 3.1(d)or assist, 3.1(e)advise, 3.1(f), 3.1(g)(iii), 3.1(g)(iv), 3.1(g)(v) and 3.1(h) (knowingly encourage or knowingly influence any Third Party to the extent it relates take any action or make any statement with respect to any of the foregoing, or otherwise take or cause any action or make any statement inconsistent with any of the foregoing; or
(l) shall not apply at contest the validity of, or publicly request any time that waiver of, the obligations set forth in this Section 2. Notwithstanding anything in this Agreement to the contrary, (i) during the Company fails six-month period following the expiration of the Standstill Period, SRS may not acquire Beneficial Ownership (including any rights or options to comply in all material respects with its obligations under Article 5 hereofown or acquire any Voting Securities (whether such right or option is exercisable immediately or only after the passage of time or upon the satisfaction of one or more conditions)) of more than 25,000,000 (as adjusted for stock splits, which failure continues unremedied for a period stock dividends, reverse stock splits and similar transactions) of 10 business days following receipt by the Company of a written notice from the Block Sale Transferee of such failure or Company’s issued and outstanding Voting Securities and (ii) the Block Sale Transferee has relinquished its nomination rights pursuant to Article 5 and all Block Sale Transferee nominated directors have resigned; or (b)]5 in the event that (x) the Board foregoing provisions of Directors determines that the Company should engage in any transaction described in this Section 3.1(e)(i) or 3.1(e)(ii), the Block Sale Transferee shall be permitted to participate in such Board of Directors’ approved transaction as a shareholder on the same terms and conditions as any other shareholder of the Company, (y) the Board of Directors determines that the Company should solicit from one or more Persons or enter into discussions with one or more Persons regarding, or invites any other Person or group to make a proposal (without similarly inviting the Block Sale Transferee to make a similar proposal) with respect to an acquisition of (i) all or substantially all of the equity securities or assets of the Company or any of its Subsidiaries (by merger, tender offer or otherwise) or (ii) any material assets or businesses of the Company or any of its Subsidiaries, the Block Sale Transferee shall have the right to make a non-public competing proposal to the Board of Directors in compliance with any written procedures generally applicable to Persons making proposals provided by the Company 5 Note to form: enumerated restrictions to be removed if the Block Sale Transferee does not accept the board nomination rights. or the Board of Directors or (z) any third party that is not an Affiliate of the Block Sale Transferee makes a bona fide offer or proposal, with respect to a matter described in Section 3.1(d) or 3.1(e) above (a “Third Party Proposal”), the Block Sale Transferee (A) shall have the right to make a non-public competing proposal to the Board of Directors and may publicly announce that it has made a competing proposal to the Board of Directors so long as such public announcement does not constitute an offer or a solicitation to any recipient thereof and (B) may tender, exchange or otherwise sell or transfer its Company Common Shares (or other equity securities of the Company) to such third party in accordance with the Third Party Proposal; provided, however, that in the case of clauses (y) and (z), the Block Sale Transferee shall be prohibited from participating with, joining in a group with or providing financing to any such third party). [For the avoidance of doubt, any discussions involving the directors nominated by the Block Sale Transferee pursuant to Article 5 hereof (i) at a meeting of the Board of Directors or (ii) with management of the Company, other members of the Board of Directors or any of the Company’s advisors or representatives, in the case of clauses (i) and (ii), while acting in such directors’ capacity as members of the Board of Directors, 2 shall not be deemed to violate (A) prohibit SRS or its directors, officers, partners, employees, members or agents (acting in such capacity) from communicating privately with the Company’s directors or officers so long as such communications are not intended to, and would not reasonably be expected to, require any public disclosure of such communications or (B) restrict any New Director in the provisions exercise of this Article 3.]6his fiduciary duties to the Company and all of its stockholders.
Appears in 1 contract
Standstill Provisions. During (a) The standstill period (the “Standstill Period”) will begin on the Signing Date and shall extend until the date that is ten (10) Business Days prior to the deadline for the submission of stockholder nominations for directors for the Company’s 2025 annual meeting of stockholders, pursuant to the By-Laws.
(b) For a period of twelve (12) months following the Signing Date (“Initial Security Period”), each MRMP Stockholder agrees that neither such MRMP Stockholder, nor any of his or its respective Affiliates and controlled Associates, shall acquire, or offer, seek or agree to acquire, by purchase or otherwise, or direct any third party in the acquisition of, any Company Common Stock or any securities convertible or exchangeable into or exercisable for Company Common Stock (collectively, “Company Securities”), or rights or options to acquire any Company Securities, or engage in any swap instrument or derivative hedging transactions or other derivative agreements of any nature with respect to Company Securities; provided that Mx. Xxx X. Sherwood and his Affiliates may acquire beneficial ownership of, or economic exposure to, Company Securities, provided that, after giving effect to any such acquisition, Mx. Xxx X. Sherwood and his Affiliates, taken together, shall not have, in the aggregate, beneficial ownership of, or economic exposure to, more than twenty-eight percent (28%) of the Company’s outstanding Company Securities that are entitled to vote at any meeting of the Company’s stockholders; provided, further, that, following the Initial Security Period and for a period of twelve (12) months thereafter, Mx. Xxx X. Sherwood and his Affiliates may acquire beneficial ownership of, or economic exposure to, Company Securities, provided that, after giving effect to any such acquisition, Mx. Xxx X. Sherwood and his Affiliates, taken together, shall not have, in the aggregate, beneficial ownership of, or economic exposure to, more than thirty percent (30%) of the Company’s outstanding Company Securities that are entitled to vote at any meeting of the Company’s stockholders; provided, however, that, subject to the approval of the Board, including a majority of the non-Sherwood Designees, no additional ownership shall be deemed to have occurred solely due to (i) a stock split, reverse stock split, reclassification, reorganization or other transaction by the Company affecting any class of the outstanding capital stock of the Company generally, (ii) a stock dividend or other pro rata distribution by the Company to holders of its outstanding capital stock, or (iii) any increase in the percentage ownership by Mx. Xxx X. Sherwood or his Affiliates of outstanding shares of the Company resulting from any action taken by the Company (any such action by the Company in clauses (i) – (iii) of this Section 2(b), a “Company Action”), and no action will be taken that disproportionately reduces Mx. Xxx X. Sherwood’s or his Affiliates’ ownership percentages, as compared to other stockholders of the Company, as a result of such Company Action.
(c) The MRMP Stockholders agree that during the Standstill Period, unless expressly authorized in writing to do so by a majority none of the members MRMP Stockholders nor any of their respective Affiliates will, and each of the Board MRMP Stockholders will cause each of Directors, acting through a committee of directors that qualify as “independent directors” as defined by applicable stock exchange listing rules [(which term, for this purpose, will exclude any directors nominated by the Block Sale Transferee)]1, the Block Sale Transferee shall not, and shall cause its their respective Affiliates not to, directly or indirectly, acting in any manner, alone or in concert with others, without prior written consent, invitation, approval or authorization of the Board or except as part of a groupotherwise provided for in this Term Sheet:
(ai) make, or in any way participate in or propose any solicitation of any proxy [(but without regard to the exclusion set forth in Rule 14a-1(l)(2)(iv) under the Exchange Act from the definition of “solicitation”)]2 to vote tender or exchange offer for any Company Common Shares (Securities or other equity securities of the Company) with respect to any matter (includingmerger, without limitation, any contested solicitation for the election of directors with respect to the Company), other than solicitations or acting as a participant in support of all of the Company’s nominees [including, without limitation, the nominees of the Block Sale Transferee pursuant to Article 5]3;
(b) form, join in or in any way participate in a group (for the avoidance of doubt, the Block Sale Transferee shall not be deemed to have formed, joined in or in any way participated in a group with the Company as a result of the Block Sale Transferee’s execution of this Agreement) with respect to the Company Common Shares (or other equity securities of the Company) or deposit any Company Common Shares (or other equity securities of the Company) in a voting trust or similar arrangement or subject any Company Common Shares (or other equity securities of the Company) to any voting agreement or similar arrangement, or grant any proxy with respect to any Company Common Shares (or other equity securities of the Company) (other than to a designated representative of the 1 Note to form: bracketed language to be removed if Block Sale Transferee does not accept the board nomination rights. 2 Note to form: bracketed language to be removed if Block Sale Transferee does not accept the board nomination rights. 3 Note to form: bracketed language to be removed if Block Sale Transferee does not accept the board nomination rights. Company pursuant to a proxy statement of the Company), other than as contemplated by the Governance Agreement or the Stockholders Agreement or the transactions contemplated thereby;
(c) seek to call, or to request the calling of, or call a special meeting of the stockholders of the Company, or seek to make, or make, a stockholder proposal (whether pursuant to Rule 14a-8 under the Exchange Act or otherwise) at any meeting of the stockholders of the Company, or make a request for a list of the Company’s stockholders, or[, other than pursuant to the Block Sale Transferee’s nomination rights in accordance with Article 5 of this Agreement,]4 seek election of a representative to the Board of Directors, seek to place a representative on the Board of Directors or seek the removal of any director from the Board of Directors, or otherwise acting alone, or by participating in a group, seek to control or influence the governance or policies of the Company;
(d) effect or seek to effect (including, without limitation, by entering into any discussions, negotiations, agreements or understandings whether or not legally enforceable with any third Person), offer or propose (whether publicly or otherwise) to effect, or cause or participate in, or in any way assist or facilitate any other Person to effect or seek, offer or propose (whether publicly or otherwise) to effect or participate in any acquisition of any Company Common Shares (or other equity securities of the Company) (or Beneficial Ownership thereof) in excess of the Ownership Limitation, except in accordance with Section 2.1; provided, that, for the avoidance of doubt, the Block Sale Transferee is permitted to Transfer to an unaffiliated third party any Company Common Shares (or other equity securities of the Company) Beneficially Owned by the Block Sale Transferee, subject to the provisions of Article 8 hereof, if applicable;
(e) effect or seek to effect (including, without limitation, by entering into any discussions, negotiations, agreements or understandings whether or not legally enforceable with any third Person), offer or propose (whether publicly or otherwise) to effect, or cause or participate in, or in any way assist or facilitate any other Person to effect or seek, offer or propose (whether publicly or otherwise) to effect or participate in (i) any tender offer or exchange offer, mergerconsolidation, acquisition, share exchange or other business combination involving the Company or any of its Subsidiariescombination, (ii) any recapitalization, restructuring, liquidation, dissolution or other similar extraordinary transaction with respect to involving the Company or any of its Subsidiaries subsidiaries or any material portion of its or their businessessecurities or assets;
(ii) make any private proposal, alone or in concert with others, that would reasonably be expected to require the Company or the MRMP Stockholders to make public disclosure (of any kind);
(iii) engage in a “solicitation” of “proxies” (as such terms are defined under the Exchange Act), including engagement by use of or in coordination with a universal proxy card, votes or written consents of stockholders or security holders with respect to, or from the holders of, Company Securities (including a “withhold” or similar campaign), for any acquisition purpose, including the election or appointment of individuals to the Board or to approve or vote in favor or against stockholder proposals, resolutions or motions, or become a “participant” (as such term is defined in Instruction 3 to Item 4 of Schedule 14A promulgated under the Exchange Act) in any material assets contested “solicitation” of proxies, votes or businesses written consents for any purpose, including the election or appointment of directors with respect to the Company (as such terms are defined under the Exchange Act) (other than a “solicitation” or acting as a “participant” in support of the nominees of the Board at any Stockholder Meeting or providing such encouragement, advice or influence that is consistent with the Board’s recommendation in connection with such director nominees or other proposals, resolutions or motions, pursuant to this Term Sheet or otherwise);
(iv) except as specifically set forth in this Term Sheet, seek any additional representation on the Board or encourage any person to submit nominees in furtherance of a contested election;
(v) make any request for a stockholder list of materials or any other books and records of the Company under Section 220 of the Delaware General Corporation Law or any of its Subsidiariesotherwise;
(fvi) publicly disclose, or cause or, in a material manner, facilitate the public disclosure (including without limitation through the filing by it of any document or report with the SEC or any other governmental agency or any disclosure to any 4 Note to form: bracketed language to be removed if Block Sale Transferee does not accept the board nomination rights. journalist, member of the media or securities analyst) of any intent, purpose, plan or proposal to obtain any waiver, or consent under, or any amendment of, any of the provisions of Section 2.1, this Section 3.1, or Article 4 (except as described specifically set forth in Section 4.1) this Term Sheet, present at any Stockholder Meeting any proposal, resolution or bring motion for consideration for action by stockholders or seek to call any action to (i) contest the validity of Section 2.1, this Section 3.1 or Article 4, or (ii) seek a release from the restrictions contained in Section 2.1, this Section 3.1 or Article 4Stockholder Meeting;
(gvii) unless required by lawgrant 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 to the MRMP Stockholders’ Affiliates, who are subject to the restrictions set forth in this Section 2, inconsistent with the terms of this Term Sheet or deposit any Company Securities in a voting trust or subject them to a voting agreement or other arrangement of similar effect with respect to any Stockholder Meeting (excluding customary brokerage accounts, margin accounts, prime brokerage accounts, swap agreements and the like, and any arrangements solely among the MRMP Stockholders);
(viii) except as specifically set forth in this Term Sheet, take any action in support of or make or issue or cause to be made or issued any public disclosure, announcement announcement, statement, proposal, plan or statement request with respect to: (A) controlling, changing or influencing the Board or management of the Company, including without limitation any plans or proposals relating to any change in the filing number or term of directors or the filling of any document vacancies on the Board, (B) any material change in the business, capitalization, stock repurchase programs and practices, capital allocation programs and practices or report with dividend policy of the SEC or Company, (C) any other governmental agency or any disclosure to any journalist, member of the media or securities analyst) (i) material change in support of any solicitation described in paragraph (a) above (other than solicitations by the Company), (ii) in support of any matter described in paragraph (c) above, (iii) concerning any potential matter described in paragraph (d) above; (iv) concerning any potential matter described in paragraph (e) above; or (v) negatively commenting upon the Company’s corporate strategymanagement, compensation, business, corporate activitiesor governance structure, board (D) any waiver, amendment or modification to the Certificate of directors Incorporation or management the By-Laws, (E) causing a class of Company Securities to be delisted from, or to cease to be authorized to be quoted on, any securities exchange or (F) causing a class of equity Company Securities to become eligible for termination of registration pursuant to Section 12(g)(4) of the avoidance Exchange Act; provided, that, the foregoing shall not prevent any of doubtthe Director Nominees from discussing any of the matters set forth in this Section 2(c)(viii) in private meetings of the Board while serving as a director in the exercise of his or her fiduciary duties to the Company or its stockholders;
(ix) form, making join or act in concert with any factual statement about person, partnership, limited partnership, syndicate or other group, including a “group” as defined pursuant to Section 13(d) of the Exchange Act with respect to any Company Securities, other than solely with other MRMP Stockholders and Affiliates of the MRMP Stockholders, with respect to the Company Securities now or hereafter owned by them;
(x) make any public disclosure, announcement, plan or request involving the Company’s corporate strategy, its management, business, corporate activitiespolicies or the Board; provided, board that, the MRMP Stockholders may file with the SEC amendments to their Schedule 13D, so long as such amendments do not violate the terms of directors or management shall not be prohibited by this Section 3.1(g)(v))2;
(xi) make any request or submit any proposal to amend or waive the terms of this Term Sheet, which could reasonably be expected to require a public announcement or disclosure of such a request or proposal; or
(hxii) enter into any discussions, negotiations, agreements or understandings (whether written or oral) with any Person with respect to any of the foregoing or advise, assist or seek to persuade others third party to take any action with respect to any of the foregoing. Notwithstanding , or facilitate, knowingly assist, finance, knowingly encourage or seek to persuade any third party to take any action the foregoing, MRMP Stockholders are prohibited from taking pursuant to this Section 2.
(ad) [Nothing in this Section 2 shall be deemed to limit the restrictions exercise in Sections 3.1(d), 3.1(e), 3.1(f), 3.1(g)(iii), 3.1(g)(iv), 3.1(g)(v) and 3.1(h) (to the extent it relates to good faith by any of the foregoing) shall not apply at any time that (i) the Company fails to comply in all material respects with its obligations under Article 5 hereof, which failure continues unremedied for a period of 10 business days following receipt Director Nominees designated by the Company MRMP Stockholders (or their replacement designees) of a written notice from the Block Sale Transferee of such failure their fiduciary duties or (ii) the Block Sale Transferee has relinquished its nomination rights pursuant to Article 5 and all Block Sale Transferee nominated in their capacity as directors have resigned; or (b)]5 in the event that (x) the Board of Directors determines that the Company should engage in any transaction described in Section 3.1(e)(i) or 3.1(e)(ii), the Block Sale Transferee shall be permitted to participate in such Board of Directors’ approved transaction as a shareholder on the same terms and conditions as any other shareholder of the Company, (y) the Board of Directors determines that the Company should solicit from one or more Persons or enter into discussions with one or more Persons regarding, or invites any other Person or group to make a proposal (without similarly inviting the Block Sale Transferee to make a similar proposal) with respect to an acquisition of (i) all or substantially all of the equity securities or assets of the Company or any of its Subsidiaries (by merger, tender offer or otherwise) or (ii) any material assets or businesses from participating in discussions and determinations of the Company or any of its Subsidiaries, the Block Sale Transferee shall have the right to make a non-public competing proposal to the Board of Directors in compliance with any written procedures generally applicable to Persons making proposals provided by the Company 5 Note to form: enumerated restrictions to be removed if the Block Sale Transferee does not accept the board nomination rights. or the Board of Directors or (z) any third party that is not an Affiliate of the Block Sale Transferee makes a bona fide offer or proposal, with respect to a matter described in Section 3.1(d) or 3.1(e) above (a “Third Party Proposal”), the Block Sale Transferee (A) shall have the right to make a non-public competing proposal to the Board of Directors and may publicly announce that it has made a competing proposal to the Board of Directors so long as such public announcement does not constitute an offer or a solicitation to any recipient thereof and (B) may tender, exchange or otherwise sell or transfer its Company Common Shares (or other equity securities of the Company) to such third party in accordance with the Third Party Proposal; provided, however, that in the case of clauses (y) and (z), the Block Sale Transferee shall be prohibited from participating with, joining in a group with or providing financing to any such third party). [For the avoidance of doubt, any discussions involving the directors nominated by the Block Sale Transferee pursuant to Article 5 hereof (i) at a meeting of the Board of Directors or (ii) with management of the Company, other members of the Board of Directors or any of the Company’s advisors or representatives, in the case of clauses (i) and (ii), while acting in such directors’ capacity as members of the Board of Directors, shall not be deemed to violate any of the provisions of this Article 3.]6Board.
Appears in 1 contract
Samples: Cooperation and Support Binding Term Sheet (Sherwood Ned L)
Standstill Provisions. During Until the Standstill Period, unless expressly authorized in writing to do so by a majority second anniversary of the members of the Board of DirectorsClosing, acting through a committee of directors Stockholder agrees that qualify as “independent directors” as defined by applicable stock exchange listing rules [(which term, for this purpose, Stockholder will exclude any directors nominated by the Block Sale Transferee)]1, the Block Sale Transferee shall not, and shall will cause its Stockholder Affiliates not to, directly or indirectly, acting to alone or as part with a third party, take any of a groupthe following actions:
(a) deposit (either before or after the date of the execution of this Agreement) any Security of the Company in a voting trust or subject any Security of the Company to any similar arrangement or proxy with respect to the voting of such Security; or
(b) make, or in any way participate participate, directly or indirectly, in any solicitation "solicitation" of any proxy ["proxies," or become a "Participant" in a "solicitation" (but without regard to the exclusion set forth as such terms are used in Rule 14a-1(l)(2)(iv) Regulation 14A under the Exchange Act from the definition of “solicitation”)]2 Act) to seek to advise or influence any person to vote against any Company Common Shares (proposal or other equity securities director nominee recommended to the stockholders of the Company) with respect to any matter (including, without limitation, any contested solicitation for the election of directors with respect to the Company), other than solicitations or acting as a participant in support of all of the Company’s nominees [including, without limitation, the nominees of the Block Sale Transferee pursuant to Article 5]3;; or
(bc) form, join in or in any way participate in a group (for the avoidance of doubt, the Block Sale Transferee shall not be deemed to have formed, joined in or in any way participated in a group with the Company as a result of the Block Sale Transferee’s execution of this Agreement) with respect to the Company Common Shares (or other equity securities of the Company) or deposit any Company Common Shares (or other equity securities of the Company) in a voting trust or similar arrangement or subject any Company Common Shares (or other equity securities of the Company) to any voting agreement or similar arrangement, or grant any proxy 13D Group with respect to any Security of the Company Common Shares or any Securities of its subsidiaries; or
(d) 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 equity securities of business combination transaction relating to the Company) (other than to a designated representative of the 1 Note to form: bracketed language to be removed if Block Sale Transferee does not accept the board nomination rights. 2 Note to form: bracketed language to be removed if Block Sale Transferee does not accept the board nomination rights. 3 Note to form: bracketed language to be removed if Block Sale Transferee does not accept the board nomination rights. Company pursuant to a proxy statement of the Company), other than as contemplated by the Governance Agreement or the Stockholders Agreement or the transactions contemplated thereby;; or
(ce) seek to call, or to request the calling of, or call initiate a special meeting of the stockholders of the Company, or seek to make, or make, a stockholder proposal (whether pursuant to "proposal," as such term is used in Rule 14a-8 under the Exchange Act Act, "propose," or otherwise) at any meeting of otherwise solicit the stockholders of the Companyapproval of, one or make a request more Stockholders for a list of the Company’s stockholders, "proposal" or induce or attempt to induce any other person to initiate a "proposal"; or[, other than pursuant
(f) otherwise act to the Block Sale Transferee’s nomination rights in accordance with Article 5 of this Agreement,]4 seek election of a representative to the Board of Directors, seek to place a representative on the Board of Directors or seek the removal of any director from the Board of Directors, or otherwise acting alone, or by participating in a group, seek to control or influence the governance management, the Board or the policies of the Company;
(d) effect or seek Company other than pursuant to effect (including, without limitation, by entering into any discussions, negotiations, agreements or understandings whether or not legally enforceable with any third Person), offer or propose (whether publicly or otherwise) its right to effect, or cause or participate in, or in any way assist or facilitate any other Person nominate directors pursuant to effect or seek, offer or propose (whether publicly or otherwise) to effect or participate in any acquisition of any Company Common Shares (or other equity securities of the Company) (or Beneficial Ownership thereof) in excess of the Ownership Limitation, except in accordance with Section 2.1Article III hereof; provided, that, for the avoidance of doubt, the Block Sale Transferee is permitted to Transfer to an unaffiliated third party any Company Common Shares (or other equity securities of the Company) Beneficially Owned by the Block Sale Transferee, subject to the provisions of Article 8 hereof, if applicable;
(e) effect or seek to effect (including, without limitation, by entering into any discussions, negotiations, agreements or understandings whether or not legally enforceable with any third Person), offer or propose (whether publicly or otherwise) to effect, or cause or participate in, or in any way assist or facilitate any other Person to effect or seek, offer or propose (whether publicly or otherwise) to effect or participate in (i) any tender offer or exchange offer, merger, acquisition, share exchange or other business combination involving the Company or any of its Subsidiaries, (ii) any recapitalization, restructuring, liquidation, dissolution or other extraordinary transaction with respect to the Company or any of its Subsidiaries or any material portion of its or their businesses, or (iii) any acquisition of any material assets or businesses of the Company or any of its Subsidiaries;
(f) publicly disclose, or cause or, in a material manner, facilitate the public disclosure (including without limitation through the filing by it of any document or report with the SEC or any other governmental agency or any disclosure to any 4 Note to form: bracketed language to be removed if Block Sale Transferee does not accept the board nomination rights. journalist, member of the media or securities analyst) of any intent, purpose, plan or proposal to obtain any waiver, or consent under, or any amendment of, any of the provisions of Section 2.1, this Section 3.1, or Article 4 (except as described in Section 4.1) or bring any action to (i) contest the validity of Section 2.1, this Section 3.1 or Article 4, or (ii) seek a release from the restrictions contained in Section 2.1, this Section 3.1 or Article 4;
(g) unless required by law, make take any other action to seek or issue or cause to be made or issued any public disclosure, announcement or statement (including without limitation effect control of the filing of any document or report Company other than in a manner consistent with the SEC terms of this Agreement or;
(h) make a public request to the Company (or its directors, officers, Stockholders, employees or agents) to take any other governmental agency or any disclosure to any journalist, member action in respect of the media or securities analyst) (i) in support of any solicitation described in paragraph (a) above (other than solicitations by the Company), (ii) in support of any matter described in paragraph (c) above, (iii) concerning any potential matter described in paragraph (d) above; (iv) concerning any potential matter described in paragraph (e) above; or (v) negatively commenting upon the Company’s corporate strategy, business, corporate activities, board of directors or management (for the avoidance of doubt, making any factual statement about the Company’s corporate strategy, business, corporate activities, board of directors or management shall not be prohibited by this Section 3.1(g)(v))foregoing materials; or
(hi) enter into disclose any discussionsintention, negotiations, agreements plan or understandings arrangement inconsistent with any Person with respect to any of the foregoing or advise, assist or seek to persuade others to take any action with respect to any of the foregoing. Notwithstanding the foregoing, (a) [the restrictions in Sections 3.1(d), 3.1(e), 3.1(f), 3.1(g)(iii), 3.1(g)(iv), 3.1(g)(v) and 3.1(h) (to the extent it relates to any of the foregoing) shall not apply at any time that (i) the Company fails to comply in all material respects with its obligations under Article 5 hereof, which failure continues unremedied for a period of 10 business days following receipt by the Company of a written notice from the Block Sale Transferee of such failure or (ii) the Block Sale Transferee has relinquished its nomination rights pursuant to Article 5 and all Block Sale Transferee nominated directors have resigned; or (b)]5 in the event that (x) the Board of Directors determines that the Company should engage in any transaction described in Section 3.1(e)(i) or 3.1(e)(ii), the Block Sale Transferee shall be permitted to participate in such Board of Directors’ approved transaction as a shareholder on the same terms and conditions as any other shareholder of the Company, (y) the Board of Directors determines that the Company should solicit from one or more Persons or enter into discussions with one or more Persons regarding, or invites any other Person or group to make a proposal (without similarly inviting the Block Sale Transferee to make a similar proposal) with respect to an acquisition of (i) all or substantially all of the equity securities or assets of the Company or any of its Subsidiaries (by merger, tender offer or otherwise) or (ii) any material assets or businesses of the Company or any of its Subsidiaries, the Block Sale Transferee shall have the right to make a non-public competing proposal to the Board of Directors in compliance with any written procedures generally applicable to Persons making proposals provided by the Company 5 Note to form: enumerated restrictions to be removed if the Block Sale Transferee does not accept the board nomination rights. or the Board of Directors or (z) any third party that is not an Affiliate of the Block Sale Transferee makes a bona fide offer or proposal, with respect to a matter described in Section 3.1(d) or 3.1(e) above (a “Third Party Proposal”), the Block Sale Transferee (A) shall have the right to make a non-public competing proposal to the Board of Directors and may publicly announce that it has made a competing proposal to the Board of Directors so long as such public announcement does not constitute an offer or a solicitation to any recipient thereof and (B) may tender, exchange or otherwise sell or transfer its Company Common Shares (or other equity securities of the Company) to such third party in accordance with the Third Party Proposal; provided, however, that in the case of clauses (y) and (z), the Block Sale Transferee shall be prohibited from participating with, joining in a group with or providing financing to any such third party). [For the avoidance of doubt, any discussions involving the directors nominated by the Block Sale Transferee pursuant to Article 5 hereof (i) at a meeting of the Board of Directors or (ii) with management of the Company, other members of the Board of Directors or any of the Company’s advisors or representatives, in the case of clauses (i) and (ii), while acting in such directors’ capacity as members of the Board of Directors, shall not be deemed to violate any of the provisions of this Article 3.]6.
Appears in 1 contract
Samples: Share Purchase Agreement (Scottish Annuity & Life Holdings LTD)
Standstill Provisions. During the Standstill PeriodThe Investors agree that, unless expressly authorized for so long as an Investor Designee has observer rights as set forth in writing to do so by a majority of the members of Section II, or serves on the Board of Directors, acting through a committee Directors of directors that qualify as “independent directors” as defined by applicable stock exchange listing rules [(which term, for this purpose, will exclude any directors nominated by either the Block Sale Transferee)]1, Company or the Block Sale Transferee shall notBank, and for three months thereafter (it being understood, in the case of resignation, that such three month period shall cause its Affiliates not tocommence upon the date the Company receives notice of resignation from such boards), without the Company's prior written consent, no Investor shall:
a. acquire, announce an intention to acquire, offer or propose to acquire, or agree to acquire, directly or indirectly, acting alone by purchase or as part otherwise, beneficial ownership of a group:any Common Stock, or direct or indirect rights to options to acquire (through purchase, exchange, conversion or otherwise) any Common Stock, if, immediately after any such acquisition, the Investors would beneficially own, in the aggregate, Common Stock representing more than 9.9% of the outstanding Common Stock;
(a) b. make, or in any way participate participate, directly or indirectly, in any solicitation "solicitation" of any proxy ["proxies" (but without regard to the exclusion set forth as such terms are defined in Rule 14a-1(l)(2)(iv) 14a-1 under the Securities Exchange Act from of 1934, as amended (the definition of “solicitation”)]2 "1934 Act") to vote any Company Common Shares (Stock, seek to advise , encourage or other equity securities of the Company) with respect to influence any matter (including, without limitation, any contested solicitation for the election of directors person or entity with respect to the Company)voting of any Common Stock, initiate or propose any shareholder proposal or induce or attempt to induce any other than solicitations person to initiate any shareholder proposal;
c. make any statement or acting as a participant in support proposal, whether written or oral, to the Board of all Directors of the Company’s nominees [including, without limitationor to any director, the nominees officer or agent of the Block Sale Transferee pursuant Company, or make any public announcement or proposal whatsoever with respect to Article 5]3a merger, acquisition of control or other business combination, sale or transfer of assets, recapitalization, dividend, share repurchase, liquidation or other extraordinary corporate transaction with the Company or any other transaction which could result in a change of control, or solicit or encourage any other person to make any such statement or proposal;
(b) d. form, join in or in any way participate in a group "group" (for within the avoidance meaning of doubt, the Block Sale Transferee shall not be deemed to have formed, joined in or in any way participated in a group with the Company as a result Section 13(d)(3) of the Block Sale Transferee’s execution 1934 Xxx) xxth respect to any securities of this Agreement) the Company, other than the group which the Investors is a member of as of the date hereof;
e. deposit any Common Stock into a voting trust or subject any Common Stock to any arrangement or agreement with respect to the Company voting of any Common Shares (or Stock other equity securities of the Company) or deposit than this Agreement;
f. execute any Company Common Shares (or other equity securities of the Company) in a voting trust or similar arrangement or subject any Company Common Shares (or other equity securities of the Company) to any voting agreement or similar arrangement, or grant any proxy written consent with respect to any Company Common Shares (or other equity securities of the Company) (other than to a designated representative of the 1 Note to form: bracketed language to be removed if Block Sale Transferee does not accept the board nomination rights. 2 Note to form: bracketed language to be removed if Block Sale Transferee does not accept the board nomination rights. 3 Note to form: bracketed language to be removed if Block Sale Transferee does not accept the board nomination rights. Company pursuant to a proxy statement of the Company), other than as contemplated by the Governance Agreement or the Stockholders Agreement or the transactions contemplated thereby;
(c) seek to call, or to request the calling of, or call a special meeting of the stockholders of the Company, or seek to make, or make, a stockholder proposal (whether pursuant to Rule 14a-8 under the Exchange Act or otherwise) at any meeting of the stockholders of the Company, or make a request for a list of the Company’s stockholders, or[, other than pursuant to the Block Sale Transferee’s nomination rights except in accordance with Article 5 of this Agreement,]4 seek election of a representative Section III.3;
g. otherwise act, alone or in concert with others, to the Board of Directors, seek to place a representative on exercise any control over the management, Board of Directors or seek the removal of any director from the Board of Directors, or otherwise acting alone, or by participating in a group, seek to control or influence the governance or policies of the Company;
h. make a public request to the Company (d) effect or seek to effect (includingits directors, without limitationofficers, by entering into any discussionsshareholders, negotiations, agreements employees or understandings whether or not legally enforceable with any third Person), offer or propose (whether publicly or otherwiseagents) to effectamend or waive any provisions of this Agreement, the Articles of Incorporation or cause or participate in, or in any way assist or facilitate any other Person to effect or seek, offer or propose (whether publicly or otherwise) to effect or participate in any acquisition of any Company Common Shares (or other equity securities Bylaws of the Company) (or Beneficial Ownership thereof) in excess of the Ownership Limitation, except in accordance with Section 2.1; provided, that, for the avoidance of doubt, the Block Sale Transferee is permitted to Transfer to an unaffiliated third party any Company Common Shares (or other equity securities of the Company) Beneficially Owned by the Block Sale Transferee, subject to the provisions of Article 8 hereof, if applicable;
(e) effect or seek to effect (including, without limitation, by entering into any discussions, negotiations, agreements or understandings whether or not legally enforceable with any third Person), offer or propose (whether publicly or otherwise) to effect, or cause or participate in, or in any way assist or facilitate any other Person to effect or seek, offer or propose (whether publicly or otherwise) to effect or participate in (i) any tender offer or exchange offer, merger, acquisition, share exchange or other business combination involving the Company or any of its Subsidiaries, (ii) any recapitalization, restructuring, liquidation, dissolution or other extraordinary transaction with respect to the Company or any of its Subsidiaries or any material portion of its or their businesses, or (iii) any acquisition of any material assets or businesses of the Company or any of its Subsidiaries;
(f) publicly disclose, or cause or, in a material manner, facilitate the public disclosure (including without limitation through any public request to permit the filing by it of any document or report with the SEC Investors or any other governmental agency or person to take any disclosure to any 4 Note to form: bracketed language to be removed if Block Sale Transferee does not accept the board nomination rights. journalist, member action in respect of the media or securities analyst) matters referred to in this Section III.1;
i. take any action which might require the Company to make a public announcement regarding the possibility of any intent, purpose, plan or proposal transaction referred to obtain any waiver, or consent under, or any amendment of, any of the provisions of Section 2.1, this Section 3.1, or Article 4 (except as described in Section 4.1) or bring any action to (i) contest the validity of Section 2.1, this Section 3.1 or Article 4, or (ii) seek a release from the restrictions contained in Section 2.1, this Section 3.1 or Article 4;
(g) unless required by law, make or issue or cause to be made or issued any public disclosure, announcement or statement (including without limitation the filing of any document or report with the SEC or any other governmental agency or any disclosure to any journalist, member of the media or securities analyst) (i) in support of any solicitation described in paragraph (a) above (other than solicitations by the Company), (ii) in support of any matter described in paragraph (c) aboveabove or similar transaction or, (iii) concerning any potential matter described in paragraph (d) above; (iv) concerning any potential matter described in paragraph (e) above; or (v) negatively commenting upon the Company’s corporate strategy, business, corporate activities, board of directors or management (for the avoidance of doubt, making any factual statement about the Company’s corporate strategy, business, corporate activities, board of directors or management shall not be prohibited by this Section 3.1(g)(v)); or
(h) enter into any discussions, negotiations, agreements or understandings with any Person with respect to any of the foregoing or advise, assist or seek encourage any other persons in connection with the foregoing; or
j. disclose publicly, or privately in a manner that could reasonably be expected to persuade others to take become public, any action intention, plan or arrangement inconsistent with respect to the foregoing; provided that nothing in this Section III.1 shall prohibit any person who is serving as a director of the foregoing. Notwithstanding the foregoingCompany as contemplated herein from, solely in his or her capacity as such director, (a) [the restrictions in Sections 3.1(d), 3.1(e), 3.1(f), 3.1(g)(iii), 3.1(g)(iv), 3.1(g)(v) and 3.1(h) (to the extent it relates to taking any of the foregoing) shall not apply action or making any statement at any time that (i) the Company fails to comply in all material respects with its obligations under Article 5 hereof, which failure continues unremedied for a period of 10 business days following receipt by the Company of a written notice from the Block Sale Transferee of such failure or (ii) the Block Sale Transferee has relinquished its nomination rights pursuant to Article 5 and all Block Sale Transferee nominated directors have resigned; or (b)]5 in the event that (x) the Board of Directors determines that the Company should engage in any transaction described in Section 3.1(e)(i) or 3.1(e)(ii), the Block Sale Transferee shall be permitted to participate in such Board of Directors’ approved transaction as a shareholder on the same terms and conditions as any other shareholder of the Company, (y) the Board of Directors determines that the Company should solicit from one or more Persons or enter into discussions with one or more Persons regarding, or invites any other Person or group to make a proposal (without similarly inviting the Block Sale Transferee to make a similar proposal) with respect to an acquisition of (i) all or substantially all of the equity securities or assets of the Company or any of its Subsidiaries (by merger, tender offer or otherwise) or (ii) any material assets or businesses of the Company or any of its Subsidiaries, the Block Sale Transferee shall have the right to make a non-public competing proposal to the Board of Directors in compliance with any written procedures generally applicable to Persons making proposals provided by the Company 5 Note to form: enumerated restrictions to be removed if the Block Sale Transferee does not accept the board nomination rights. or the Board of Directors or (z) any third party that is not an Affiliate of the Block Sale Transferee makes a bona fide offer or proposal, with respect to a matter described in Section 3.1(d) or 3.1(e) above (a “Third Party Proposal”), the Block Sale Transferee (A) shall have the right to make a non-public competing proposal to the Board of Directors and may publicly announce that it has made a competing proposal to the Board of Directors so long as such public announcement does not constitute an offer or a solicitation to any recipient thereof and (B) may tender, exchange or otherwise sell or transfer its Company Common Shares (or other equity securities of the Company) to such third party in accordance with the Third Party Proposal; provided, however, that in the case of clauses (y) and (z), the Block Sale Transferee shall be prohibited from participating with, joining in a group with or providing financing to any such third party). [For the avoidance of doubt, any discussions involving the directors nominated by the Block Sale Transferee pursuant to Article 5 hereof (i) at a meeting of the Board of Directors or of any committee thereof; (iib) with management making any statement to any director, officer or agent of the Company, or (c) making any statement or disclosure required under the federal securities laws or other members applicable laws; and provided, further, that nothing in this Section shall restrict any private communications between the Investors and any person designated by the Investors as a director, provided that all such communications by such person remain subject to the fiduciary duties of the Board of Directors or any of the Company’s advisors or representatives, in the case of clauses (i) and (ii), while acting in such directors’ capacity person as members of the Board of Directors, shall not be deemed to violate any of the provisions of this Article 3.]6a director.
Appears in 1 contract
Samples: Shareholder Agreement (Everest Partners Limited Partnership)
Standstill Provisions. During (a) Amazon agrees that from the date of this Agreement until the later of (x) the expiration or termination of the ATSA, and (y) an Amazon Investor Rights Termination Event (such period, the “Standstill Period”), unless expressly authorized in writing to do so by a majority without the prior written approval of the members of the Board of DirectorsBoard, acting through a committee of directors that qualify as “independent directors” as defined by applicable stock exchange listing rules [(which term, for this purpose, will exclude any directors nominated by the Block Sale Transferee)]1, the Block Sale Transferee Amazon shall not, directly or indirectly, and shall cause its Affiliates Subsidiaries not to, directly or indirectly, acting alone or as part of a group:
(ai) acquire, agree to acquire, propose or offer to acquire, by purchase or otherwise, Equity Securities or Derivative Instruments of the Company, other than:
(A) Warrant Shares acquired by Amazon in accordance with the Investment Agreement;
(B) as a result of any stock split, stock dividend or distribution, other subdivision, reorganization, reclassification or similar capital transaction involving Equity Securities of the Company; or
(C) pursuant to and in accordance with Section 2.1(b)(i) and Section 2.1(b)(ii);
(ii) make, or in any way participate or engage in, any “solicitation” of “proxies” (as such terms are used in any solicitation the proxy rules of any proxy [the Commission) (but without regard whether or not relating to the exclusion set forth in Rule 14a-1(l)(2)(ivelection or removal of directors) under the Exchange Act from the definition of “solicitation”)]2 to vote any Voting Securities, or disclose how Amazon intends to vote its Warrant Shares on any contested election of directors or any contested proposal relating to an Acquisition Proposal;
(iii) call, or seek to call, a meeting of the stockholders of the Company Common Shares (or other equity securities initiate any stockholder proposal for action by stockholders of the Company;
(iv) with respect nominate or seek to any matter (includingnominate, without limitationdirectly or indirectly, any contested solicitation for the election of directors with respect person to the Company), other than solicitations or acting as a participant in support of all of the Company’s nominees [including, without limitation, the nominees of the Block Sale Transferee Board (except pursuant to Article 5]3I);
(bv) form, join in or in any way participate in a group (for the avoidance of doubt, the Block Sale Transferee shall not be deemed to have formed, joined in or in any way participated in a group with the Company as a result of the Block Sale Transferee’s execution of this Agreement) with respect to the Company Common Shares (or other equity securities of the Company) or deposit any Company Common Shares (or other equity securities of the Company) Voting Securities in a voting trust or similar arrangement contract or agreement or subject any Company Common Shares (or other equity securities of the Company) Voting Securities to any voting agreement agreement, pooling arrangement or similar arrangement, or grant any proxy with respect to any Voting Securities (in each case, other than (A) pursuant to Section 1.3(b) and Section 1.3(c), or (B) otherwise to the Company Common Shares or a Person specified by the Company in a proxy card (paper or other equity securities electronic) provided to stockholders of the Company) (other than to a designated representative of the 1 Note to form: bracketed language to be removed if Block Sale Transferee does not accept the board nomination rights. 2 Note to form: bracketed language to be removed if Block Sale Transferee does not accept the board nomination rights. 3 Note to form: bracketed language to be removed if Block Sale Transferee does not accept the board nomination rights. Company pursuant to a proxy statement by or on behalf of the Company), other than as contemplated by the Governance Agreement or the Stockholders Agreement or the transactions contemplated thereby;
(cvi) seek make any public announcement with respect to, enter, agree to callenter, propose or offer to request the calling of, or call a special meeting of the stockholders of the Company, or seek to make, or make, a stockholder proposal (whether pursuant to Rule 14a-8 under the Exchange Act or otherwise) at any meeting of the stockholders of the Company, or make a request for a list of the Company’s stockholders, or[, other than pursuant to the Block Sale Transferee’s nomination rights in accordance with Article 5 of this Agreement,]4 seek election of a representative to the Board of Directors, seek to place a representative on the Board of Directors or seek the removal of any director from the Board of Directors, or otherwise acting alone, or by participating in a group, seek to control or influence the governance or policies of the Company;
(d) effect or seek to effect (including, without limitation, by entering enter into any discussionsmerger, negotiationsbusiness combination, agreements or understandings whether or not legally enforceable with any third Person)recapitalization, offer or propose (whether publicly or otherwise) to effectrestructuring, or cause or participate in, or change in any way assist or facilitate any other Person to effect or seek, offer or propose (whether publicly or otherwise) to effect or participate in any acquisition of any Company Common Shares (control transaction or other equity securities of the Company) (or Beneficial Ownership thereof) in excess of the Ownership Limitation, except in accordance with Section 2.1; provided, that, for the avoidance of doubt, the Block Sale Transferee is permitted to Transfer to an unaffiliated third party any Company Common Shares (or other equity securities of the Company) Beneficially Owned by the Block Sale Transferee, subject to the provisions of Article 8 hereof, if applicable;
(e) effect or seek to effect (including, without limitation, by entering into any discussions, negotiations, agreements or understandings whether or not legally enforceable with any third Person), offer or propose (whether publicly or otherwise) to effect, or cause or participate in, or in any way assist or facilitate any other Person to effect or seek, offer or propose (whether publicly or otherwise) to effect or participate in (i) any tender offer or exchange offer, merger, acquisition, share exchange or other business combination similar extraordinary transaction involving the Company or any of its Subsidiaries, (ii) any recapitalization, restructuring, liquidation, dissolution or other extraordinary transaction with respect to the Company or any purchase of its Subsidiaries or any a material portion of its the assets, properties or their businessesEquity Securities of the Company, or other than acquisitions of Equity Securities as follows:
(iiiA) any acquisition Warrant Shares acquired by Amazon in accordance with the Investment Agreement;
(B) as a result of any material assets stock split, stock dividend or businesses distribution, other subdivision, reorganization, reclassification or similar capital transaction involving Equity Securities of the Company; or
(C) pursuant to and in accordance with Section 2.1(b)(i) and Section 2.1(b)(ii);
(vii) otherwise act, alone or in concert with others, to seek to control or influence the management or the policies of the Company or any of its Subsidiaries;
(f) publicly disclose, or cause or, in a material manner, facilitate the public disclosure (including without limitation through the filing by it of any document or report with the SEC or any other governmental agency or any disclosure to any 4 Note to form: bracketed language to be removed if Block Sale Transferee does not accept the board nomination rights. journalist, member of the media or securities analyst) of any intent, purpose, plan or proposal to obtain any waiver, or consent under, or any amendment of, any of the provisions of Section 2.1, this Section 3.1, or Article 4 (except as described in Section 4.1) or bring any action to (i) contest the validity of Section 2.1, this Section 3.1 or Article 4, or (ii) seek a release from the restrictions contained in Section 2.1, this Section 3.1 or Article 4;
(g) unless required by law, make or issue or cause to be made or issued any public disclosure, announcement or statement (including without limitation the filing of any document or report with the SEC or any other governmental agency or any disclosure to any journalist, member of the media or securities analyst) (i) in support of any solicitation described in paragraph (a) above (other than solicitations by the Company), (ii) in support of any matter described in paragraph (c) above, (iii) concerning any potential matter described in paragraph (d) above; (iv) concerning any potential matter described in paragraph (e) above; or (v) negatively commenting upon the Company’s corporate strategy, business, corporate activities, board of directors or management (for the avoidance of doubt, making excluding (A) any factual statement about such act to the Company’s corporate strategyextent in its capacity as a commercial counterparty, businesscustomer, corporate activitiessupplier, board of directors industry participant or management shall not be prohibited the like and (B) any such act by this Section 3.1(g)(vthe Amazon Director or the Amazon Observer, in their capacity as such, pursuant to the rights granted to such Person under Article I)); or;
(hviii) take any action that would reasonably be expected to require the Company to make a public announcement regarding any of the events described above;
(ix) advise or knowingly assist or knowingly encourage or enter into any discussions, negotiations, agreements or understandings arrangements with any Person other Persons in connection with the foregoing;
(x) form, join or in any way participate in a Group (other than with its Subsidiary that is bound by the restrictions of this Section 2.2(a) or a Group that consists solely of Amazon and/or any of its Affiliates), with respect to any Voting Securities or otherwise in connection with any of the foregoing foregoing; or
(xi) publicly disclose any intention, plan or advise, assist or seek to persuade others to take any action proposal with respect to any of the foregoing. Notwithstanding In addition, Amazon shall not, directly or indirectly, and shall not permit any of its Subsidiaries, directly or indirectly, to, contest the foregoingvalidity of this Section 2.2 or, (a) [the restrictions in Sections 3.1(dsubject to Section 2.2(b), 3.1(e)seek a waiver, 3.1(f), 3.1(g)(iii), 3.1(g)(iv), 3.1(g)(v) and 3.1(hamendment or release of any provisions of this Section 2.2 (including this sentence) (whether by legal action or otherwise).
(b) Notwithstanding anything to the extent it relates to contrary contained herein or in any of the foregoingother Transaction Documents, including Section 2.2(a) hereof, Amazon shall not apply at any time that be prohibited or restricted from making and submitting:
(i) to the Company fails and/or the Board, any Acquisition Proposal that is intended by Amazon to comply in all material respects with its obligations under Article 5 hereofbe made and submitted on a non-publicly disclosed or announced basis, which failure continues unremedied or any confidential request for a period of 10 business days following receipt by the Company and/or the Board to waive, amend or provide a release of a written notice from the Block Sale Transferee any provision of this Section 2.2 (whether or not in connection with such failure or Acquisition Proposal); and
(ii) the Block Sale Transferee has relinquished its nomination rights pursuant to Article 5 and all Block Sale Transferee nominated directors have resigned; or (b)]5 in the event that (x) the Board of Directors determines that the Company should engage in any transaction described in Section 3.1(e)(i) or 3.1(e)(ii), the Block Sale Transferee shall be permitted to participate in such Board of Directors’ approved transaction as a shareholder on the same terms and conditions as any other shareholder of the Company, the Board, and/or the Company’s stockholders, following any Acquisition Proposal received (yor entered into) by the Company, the Board of Directors determines that or the Company should solicit from one or more Persons or enter into discussions with one or more Persons regarding, or invites Company’s stockholders by any other Person or group to make a proposal (without similarly inviting the Block Sale Transferee to make a similar proposal) with respect to an acquisition of (i) all or substantially all of the equity securities or assets of the Company Group other than Amazon or any of its Subsidiaries that is, was or becomes, publicly disclosed or announced (including as a result of being approved by merger, tender offer or otherwise) or (ii) any material assets or businesses of the Company or any of its Subsidiaries, the Block Sale Transferee shall have the right to make a non-public competing proposal to the Board or otherwise the subject of Directors in compliance any agreement, contract or understanding with any written procedures generally applicable to Persons making proposals provided by the Company 5 Note to form: enumerated restrictions to be removed if Company) (the Block Sale Transferee does not accept the board nomination rights. or the Board of Directors or (z) any third party that is not an Affiliate of the Block Sale Transferee makes a bona fide offer or proposal, with respect to a matter described in Section 3.1(d) or 3.1(e) above (a “Third Party Original Public Acquisition Proposal”), the Block Sale Transferee a Qualifying Public Acquisition Proposal (A) shall have the right to make a non-public competing proposal to the Board of Directors and may publicly announce that it has made a competing proposal to the Board of Directors so long as which such public announcement does not constitute an offer or a solicitation to any recipient thereof and (B) may tenderQualifying Public Acquisition Proposal may, exchange or otherwise sell or transfer its Company Common Shares (or other equity securities of the Company) to such third party in accordance with the Third Party Proposal; provided, however, that in the case of clauses (y) and (z), the Block Sale Transferee shall be prohibited from participating with, joining in a group with or providing financing to any such third party). [For for the avoidance of doubt, any discussions involving include requests for the directors nominated by the Block Sale Transferee pursuant to Article 5 hereof (i) at a meeting of Company and/or the Board to waive, amend or provide a release of Directors any provision of this Section 2.2), or from taking any other action, whether or not otherwise restricted by Section 2.2(a), in connection with evaluating, making, submitting, negotiating, effectuating or implementing any such Qualifying Public Acquisition Proposal (ii) with management of the Company, other members of the Board of Directors or any of the Company’s advisors amendment, supplement or representativesmodification thereto) provided that, in the case of clauses (i) and this sub-clause (ii), while acting the right of Amazon to evaluate, make, submit, negotiate, effectuate or implement a Qualifying Public Acquisition Proposal on a publicly disclosed and announced basis shall terminate with respect to the Original Public Acquisition Proposal if such Original Public Acquisition Proposal is publicly withdrawn (or terminated) (for the avoidance of doubt, an amendment, supplement or modification to, or replacement Acquisition Proposal in respect of, such directors’ capacity as members of the Board of DirectorsOriginal Public Acquisition Proposal, shall not be deemed to violate be a withdrawal (or termination)) before Amazon initially publicly discloses or announces such Qualifying Public Acquisition Proposal; provided, further, that the immediately preceding proviso shall not prohibit or restrict Amazon from continuing, amending, supplementing or modifying, publicly or otherwise, any such Qualifying Public Acquisition Proposal that was initially publicly disclosed or announced prior to the public withdrawal (or termination) of the Original Public Acquisition Proposal, or limit in any respect the rights of Amazon with respect to any subsequent Original Public Acquisition Proposal (whether or not made by the same Person or Group, and whether or not related in any manner to any previously withdrawn (or terminated) Original Public Acquisition Proposal).
(c) Notwithstanding the foregoing, the provisions of this Article 3.]6Section 2.2 shall not, and are not intended to, restrict the manner in which any Amazon Director may (i) vote on any matter submitted to the Board, (ii) participate in deliberations or discussions of the Board (including making suggestions or raising issues to the Board) in his or her capacity as a member of the Board, or (iii) take actions required by his or her exercise of legal duties and obligations as a member of the Board or refrain from taking any action prohibited by his or her legal duties and obligations as a member of the Board. For purposes of clarity, subject to Section 1.6, any Amazon Director may participate fully in discussions, deliberations, negotiations or determinations, or other actions or matters with respect to which any other members of the Board participate, regarding any Acquisition Proposal or any Acquisition Transaction; provided, that (x) such Acquisition Proposal or Acquisition Transaction is not made or submitted by Amazon and (y) Amazon has committed to the Company in writing not to make (directly or through its Subsidiaries) a Qualifying Public Acquisition Proposal with respect to such Acquisition Proposal or Acquisition Transaction.
(d) Notwithstanding anything to the contrary herein, the provisions of this Section 2.2 shall become void and of no further force and effect upon the Company’s publicly announcing the commencement of a process, or its intention to commence a process, to evaluate strategic alternatives for the Company.
Appears in 1 contract
Samples: Shareholder Agreement (Atlas Air Worldwide Holdings Inc)
Standstill Provisions. During the period (the “Standstill Period, unless expressly authorized ”) commencing on the Effective Date and ending on the date that is two (2) years from the effective date of a Form 15 filed by the Company in writing to do so by a majority respect of the members of the Board of DirectorsClass A Common Stock, acting through a committee of directors that qualify as “independent directors” as defined by applicable stock exchange listing rules [(which term, for this purpose, will exclude any directors nominated by the Block Sale Transferee)]1, the Block Sale Transferee Executive shall not, and shall cause its and direct his Family Members and Affiliates (and any Associates of the foregoing) and any other member of the Executive 13D Group not to, directly or indirectly, acting alone or as part in any manner, take any of a group:the following actions (unless prior Independent Approval has been obtained):
(a) makeacquire, offer to acquire, or cause to be acquired any ownership or other interest in any way participate in Class A Common Stock or any solicitation of Synthetic Position, or otherwise enter into any proxy [(but without regard to the exclusion set forth in Rule 14a-1(l)(2)(iv) under the Exchange Act from the definition of “solicitation”)]2 to vote any Company Common Shares contract, arrangement, understanding or relationship (or other equity securities of the Companymodify or amend any such existing contract, arrangement, understanding or relationship) with respect to any matter Class A Common Stock or any Synthetic Position, such that Executive would have Beneficial Ownership of more than (including, without limitationi) 25% of the issued and outstanding Class A Common Stock or (ii) in the event Executive’s Beneficial Ownership is greater than 25% of the issued and outstanding Class A Common Stock (after receiving prior Independent Approval hereunder), any contested solicitation for the election acquisition of directors with respect to the Company), other more than solicitations or acting as a participant in support of all 3% of the Company’s nominees [including, without limitation, issued and outstanding Class A Common Stock immediately following the nominees consummation of the Block Sale Transferee pursuant to Article 5]3such transaction;
(b) form, join in solicit proxies or in written consents of stockholders or conduct any way participate in a group other type of referendum (for the avoidance of doubt, the Block Sale Transferee shall not be deemed to have formed, joined in binding or in any way participated in a group with the Company as a result of the Block Sale Transferee’s execution of this Agreementnon-binding) 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 Company Common Shares Securities Exchange Act of 1934, as amended (the “Exchange Act”)), in or assist, advise, knowingly encourage or knowingly influence any Third Party in any “solicitation” of any proxy, consent or other authority (as such terms are defined under the Exchange Act) to vote any Voting Securities, against (or other equity securities of the Companyto withhold support for) or deposit that is intended to seek the removal of, or is in support of any “competing” nominee or slate running against, any Independent Director (as defined herein) then serving on the Board or any Company Common Shares Nominee (or other equity securities of the Company) in a voting trust or similar arrangement or subject any Company Common Shares (or other equity securities of the Company) to any voting agreement or similar arrangement, or grant any proxy with respect to any Company Common Shares (or other equity securities of the Company) (other than to a designated representative of the 1 Note to form: bracketed language to be removed if Block Sale Transferee does not accept the board nomination rights. 2 Note to form: bracketed language to be removed if Block Sale Transferee does not accept the board nomination rights. 3 Note to form: bracketed language to be removed if Block Sale Transferee does not accept the board nomination rights. Company pursuant to a proxy statement of the Companyas defined herein), other than as contemplated by the Governance Agreement or the Stockholders Agreement or the transactions contemplated thereby;
(c) seek other than through open market or block trade brokered sale transactions where (i) the identity of the purchaser is unknown to callExecutive, or to request the calling of, (ii) Executive does not directly or call a special meeting of the stockholders of the Company, or seek to make, or make, a stockholder proposal (whether pursuant to Rule 14a-8 under the Exchange Act or otherwise) at any meeting of the stockholders of the Company, or make a request for a list of the Company’s stockholders, or[, other than pursuant to the Block Sale Transferee’s nomination rights in accordance with Article 5 of this Agreement,]4 seek election of a representative to the Board of Directors, seek to place a representative on the Board of Directors or seek the removal of any director from the Board of Directors, or otherwise acting alone, or by participating in a group, seek to control indirectly select or influence the governance or policies selection of the Companypurchaser, sell, offer or agree to sell any Voting Securities of the Company to any Third Party that, to the knowledge of Executive after due inquiry, (x) has aggregate Beneficial Ownership (together with its Affiliates and Associates) of more than 9.9% of the issued and outstanding Common Stock or (y) would result in such Third Party having aggregate Beneficial Ownership (together with its Affiliates and Associates) of more than 9.9% of the issued and outstanding Common Stock;
(d) effect or seek to effect (including, without limitation, by entering into any discussions, negotiations, agreements or understandings whether or not legally enforceable with any third Person)effect, offer or propose (whether publicly or otherwise) to effect, or cause or participate in, or in any way assist assist, facilitate or facilitate encourage any other Person to effect or seek, offer or propose (whether publicly or otherwise) to effect or participate in any acquisition of any Company Common Shares (or other equity securities of the Company) (or Beneficial Ownership thereof) in excess of the Ownership Limitation, except in accordance with Section 2.1; provided, that, for the avoidance of doubt, the Block Sale Transferee is permitted to Transfer to an unaffiliated third party any Company Common Shares (or other equity securities of the Company) Beneficially Owned by the Block Sale Transferee, subject to the provisions of Article 8 hereof, if applicable;
(e) effect or seek to effect (including, without limitation, by entering into any discussions, negotiations, agreements or understandings whether or not legally enforceable with any third Person), offer or propose (whether publicly or otherwise) to effect, or cause or participate in, or in any way assist or facilitate any other Person to effect or seek, offer or propose (whether publicly or otherwise) to effect or participate in (i) any tender offer or exchange offer, merger, consolidation, acquisition, share exchange or other scheme, arrangement, business combination involving the Company or any of its Subsidiariescombination, (ii) any recapitalization, restructuringreorganization, sale or acquisition of all or a substantial portion of the Company’s assets, liquidation, dissolution or other extraordinary transaction with respect to involving the Company or any of its Subsidiaries subsidiaries or any material portion of their respective securities (each, an “Extraordinary Transaction”);
(e) except as is reasonably acceptable to the Company, form or join in a partnership, limited partnership, syndicate or other group, including a “group” as defined under Section 13(d) of the Exchange Act, with respect to the Voting Securities (excluding any group composed solely of Executive’s Family Members and his and their respective Affiliates and any member of the current Executive 13D Group);
(f) (i) solicit, initiate, discuss, negotiate, enter into or effectuate, directly or indirectly, any related party transaction between the Company or any of its subsidiaries and Hydron, Inc. or their businessesany of its subsidiaries, or (iiiii) cause any acquisition of any material assets or businesses funds of the Company or any of its Subsidiaries;
(f) publicly disclose, or cause or, in a material manner, facilitate the public disclosure (including without limitation through the filing by it of any document or report with the SEC or any other governmental agency or any disclosure to any 4 Note to form: bracketed language subsidiaries to be removed if Block Sale Transferee does not accept used for or to advance the board nomination rights. journalistbusiness of Hydron, member of the media Inc. or securities analyst) of any intent, purpose, plan or proposal to obtain any waiver, or consent under, or any amendment of, any of the provisions of Section 2.1, this Section 3.1, or Article 4 (except as described in Section 4.1) or bring any action to (i) contest the validity of Section 2.1, this Section 3.1 or Article 4, or (ii) seek a release from the restrictions contained in Section 2.1, this Section 3.1 or Article 4;its subsidiaries.
(g) unless required by law, make or issue or cause to be made or issued any public disclosure, announcement or statement (including without limitation the filing of any document or report with the SEC or any other governmental agency or any disclosure to any journalist, member of the media or securities analyst) (i) in support of any solicitation described in paragraph (a) above (other than solicitations by the Company), (ii) in support of any matter described in paragraph (c) above, (iii) concerning any potential matter described in paragraph (d) above; (iv) concerning any potential matter described in paragraph (e) above; or (v) negatively commenting upon the Company’s corporate strategy, business, corporate activities, board of directors or management (for the avoidance of doubt, making any factual statement about the Company’s corporate strategy, business, corporate activities, board of directors or management shall not be prohibited by this Section 3.1(g)(v)); or
(h) enter into any discussions, negotiations, agreements agreements, or understandings with any Person with respect to any of the foregoing or advise, assist or seek to persuade others to take any action Third Party with respect to any of the foregoing. Notwithstanding the foregoing, (a) [the restrictions in Sections 3.1(d)or assist, 3.1(e)advise, 3.1(f), 3.1(g)(iii), 3.1(g)(iv), 3.1(g)(v) and 3.1(h) (knowingly encourage or knowingly influence any Third Party to the extent it relates take any action or make any statement with respect to any of the foregoing) shall not apply at , or otherwise take or knowingly cause any time that action, or make any statement, inconsistent with any of the foregoing; or
(i) contest the Company fails to comply in all material respects with its obligations under Article 5 hereofvalidity of, which failure continues unremedied for a period of 10 business days following receipt by the Company of a written notice from the Block Sale Transferee of such failure or (ii) the Block Sale Transferee has relinquished its nomination rights pursuant to Article 5 and all Block Sale Transferee nominated directors have resigned; or (b)]5 in the event that (x) the Board of Directors determines that the Company should engage in publicly request any transaction described in Section 3.1(e)(i) or 3.1(e)(ii)waiver of, the Block Sale Transferee shall be permitted to participate obligations set forth in such Board of Directors’ approved transaction as a shareholder on the same terms and conditions as any other shareholder of the Company, (y) the Board of Directors determines that the Company should solicit from one or more Persons or enter into discussions with one or more Persons regarding, or invites any other Person or group to make a proposal (without similarly inviting the Block Sale Transferee to make a similar proposal) with respect to an acquisition of (i) all or substantially all of the equity securities or assets of the Company or any of its Subsidiaries (by merger, tender offer or otherwise) or (ii) any material assets or businesses of the Company or any of its Subsidiaries, the Block Sale Transferee shall have the right to make a non-public competing proposal to the Board of Directors in compliance with any written procedures generally applicable to Persons making proposals provided by the Company 5 Note to form: enumerated restrictions to be removed if the Block Sale Transferee does not accept the board nomination rights. or the Board of Directors or (z) any third party that is not an Affiliate of the Block Sale Transferee makes a bona fide offer or proposal, with respect to a matter described in this Section 3.1(d) or 3.1(e) above (a “Third Party Proposal”), the Block Sale Transferee (A) shall have the right to make a non-public competing proposal to the Board of Directors and may publicly announce that it has made a competing proposal to the Board of Directors so long as such public announcement does not constitute an offer or a solicitation to any recipient thereof and (B) may tender, exchange or otherwise sell or transfer its Company Common Shares (or other equity securities of the Company) to such third party in accordance with the Third Party Proposal1; provided, however, that in the case of clauses clause (yg) and (z), the Block Sale Transferee shall be prohibited from participating with, joining in a group with or providing financing to any such third party). [For the avoidance of doubt, any discussions involving the directors nominated by the Block Sale Transferee pursuant to Article 5 hereof (i) at a meeting of the Board of Directors or (ii) with management of the Company, other members of the Board of Directors or any of the Company’s advisors or representatives, in the case of clauses (i) and (ii), while acting in such directors’ capacity as members of the Board of Directors, shall not be deemed to violate prevent Executive from defending any of claim by the Company that Executive has breached this Section 1. Notwithstanding anything in this Agreement to the contrary, the foregoing provisions of this Article 3.]6Section 1 shall not be deemed to restrict Executive in the exercise of his fiduciary duties to the Company and all of its stockholders.
Appears in 1 contract
Samples: Cooperation Agreement (Chen Mo)
Standstill Provisions. During (a) RC Ventures agrees that, from the date of this Agreement until the earlier of (x) the date that is thirty (30) calendar days prior to the deadline for the submission of director nominations by shareholders for the Company’s 2023 annual meeting of shareholders (the “2023 Annual Meeting”) pursuant to the By-Laws or (y) the date that is one hundred twenty (120) calendar days prior to the first anniversary of the 2022 Annual Meeting (the “Standstill Period”), unless expressly authorized in writing to do so by a majority of the members of the Board of Directors, acting through a committee of directors that qualify as “independent directors” as defined by applicable stock exchange listing rules [(which term, for this purpose, will exclude any directors nominated by the Block Sale Transferee)]1, the Block Sale Transferee RC Ventures shall not, and shall cause each of its Affiliates and Associates not to, in each case directly or indirectly, in any manner:
(i) acquire, seek or propose (publicly or otherwise) or agree to acquire, beneficial ownership, directly or indirectly and acting alone or as part in concert, whether by purchase, tender or exchange offer, through the acquisition of control of another person, by joining a partnership, limited partnership, syndicate or other group:, or through swap or hedging transactions or otherwise, any securities of the Company or any rights decoupled from the underlying securities of the Company that would result in RC Ventures (together with its Affiliates and Associates) owning, controlling or otherwise having any beneficial ownership interest in or aggregate economic exposure of more than 19.9% of the outstanding shares of Common Stock;
(aii) make, engage in or in any way participate in any solicitation of any proxy [proxies or become a “participant” in a “solicitation” (but without regard to the exclusion set forth as such terms are defined in Rule 14a-1(l)(2)(iv) Regulation 14A under the Exchange Act from the definition Act) of “solicitation”)]2 proxies or consents to vote any Company Common Shares (or other equity securities of the Company) with respect to any matter (including, without limitation, any solicitation of consents that seeks to call a special meeting of shareholders), or seek to advise, encourage or influence any person with respect to the voting of any securities of the Company or any securities convertible or exchangeable into or exercisable for any such securities for the election of individuals to the Board or to approve shareholder proposals, or become a “participant” in any contested solicitation “solicitation” for the election of directors with respect to the Company), other than solicitations or acting as a participant in support of all each case, with respect to securities of the Company’s nominees [including, without limitation, the nominees of the Block Sale Transferee pursuant to Article 5]3;
(biii) form, join in join, or in any way knowingly participate or enter into any discussions or negotiations with any person not a party to this Agreement to participate in a group any “group” (for within the avoidance meaning of doubt, the Block Sale Transferee shall not be deemed to have formed, joined in or in any way participated in a group with the Company as a result Section 13(d)(3) of the Block Sale Transferee’s execution of this AgreementExchange Act) with respect to the Company Common Shares or its securities (other than a “group” that includes all or other equity securities some of the Companymembers of RC Ventures, but does not include any other persons that are not members of RC Ventures as of the date hereof); provided, however, that nothing herein shall limit the ability of an Affiliate of RC Ventures to join the “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;
(iv) agree, attempt, seek or propose to deposit any Company shares of Common Shares (or other equity securities of the Company) Stock in a any voting trust or similar arrangement or subject any Company shares of Common Shares Stock to any arrangement or agreement with respect to the voting of any shares of Common Stock (including by granting any proxy, consent or other equity securities authority to vote), other than any such voting trust, arrangement or agreement solely among the members of RC Ventures and otherwise in accordance with this Agreement;
(v) seek or submit, or knowingly encourage any person to seek or submit, nomination(s) in furtherance of a “contested solicitation” for the appointment, election or removal of directors with respect to the Company or seek, or knowingly encourage or take any other action with respect to the appointment, election or removal of any directors (except as specifically permitted in Section 1), in each case in opposition to the recommendation of the Board; provided, however, that nothing in this Agreement shall prevent RC Ventures or its Affiliates or Associates from taking actions in furtherance of identifying director candidates in connection with the 2023 Annual Meeting so long as such actions do not create a public disclosure obligation for RC Ventures or the Company and are undertaken on a confidential basis;
(vi) (A) make any proposal for consideration by shareholders at any annual or special meeting of shareholders of the Company, (B) to make any voting agreement offer or similar arrangement, proposal (with or grant any proxy without conditions) with respect to any Company Common Shares merger, tender (or exchange) offer, acquisition, recapitalization, restructuring, disposition, business combination or other equity securities of extraordinary transaction involving the Company, (C) solicit a third party to make an offer or proposal (other than with or without conditions) with respect to a designated representative of the 1 Note to form: bracketed language to be removed if Block Sale Transferee does not accept the board nomination rights. 2 Note to form: bracketed language to be removed if Block Sale Transferee does not accept the board nomination rights. 3 Note to form: bracketed language to be removed if Block Sale Transferee does not accept the board nomination rights. Company pursuant to a proxy statement of the Company)any merger, tender (or exchange) offer, acquisition, recapitalization, restructuring, disposition, other than as contemplated by the Governance Agreement business combination or the Stockholders Agreement or the transactions contemplated thereby;
(c) seek to call, or to request the calling of, or call a special meeting of the stockholders of other extraordinary transaction involving the Company, or seek to makeencourage, initiate or make, a stockholder proposal (whether pursuant to Rule 14a-8 under the Exchange Act or otherwise) at any meeting of the stockholders of the Company, or make a request for a list of the Company’s stockholders, or[, other than pursuant to the Block Sale Transferee’s nomination rights in accordance with Article 5 of this Agreement,]4 seek election of a representative to the Board of Directors, seek to place a representative on the Board of Directors or seek the removal of any director from the Board of Directors, or otherwise acting alone, or by participating in a group, seek to control or influence the governance or policies of the Company;
(d) effect or seek to effect (including, without limitation, by entering into any discussions, negotiations, agreements or understandings whether or not legally enforceable with support any third Person), party in making such an offer or propose proposal, (whether D) publicly or otherwise) to effectcomment on any third party proposal regarding any merger, or cause or participate in, or in any way assist or facilitate any other Person to effect or seek, offer or propose (whether publicly or otherwise) to effect or participate in any acquisition of any Company Common Shares tender (or other equity securities of the Companyexchange) (or Beneficial Ownership thereof) in excess of the Ownership Limitation, except in accordance with Section 2.1; provided, that, for the avoidance of doubt, the Block Sale Transferee is permitted to Transfer to an unaffiliated third party any Company Common Shares (or other equity securities of the Company) Beneficially Owned by the Block Sale Transferee, subject to the provisions of Article 8 hereof, if applicable;
(e) effect or seek to effect (including, without limitation, by entering into any discussions, negotiations, agreements or understandings whether or not legally enforceable with any third Person), offer or propose (whether publicly or otherwise) to effect, or cause or participate in, or in any way assist or facilitate any other Person to effect or seek, offer or propose (whether publicly or otherwise) to effect or participate in (i) any tender offer or exchange offer, merger, acquisition, share exchange or other business combination involving the Company or any of its Subsidiaries, (ii) any recapitalization, restructuring, liquidationdisposition, dissolution business combination or other extraordinary transaction with respect to the Company by such third party or (E) call, seek or request (publicly or otherwise) a special meeting of shareholders (whether or not such meeting is permitted by the Charter or By-Laws);
(vii) seek, alone or in concert with others, representation on the Board, except as specifically permitted in Section 1;
(viii) advise, knowingly encourage, knowingly support or knowingly influence any person with respect to the voting or disposition of its Subsidiaries any securities of the Company at any annual or any material portion special meeting of its shareholders with respect to (A) the appointment, election or their businessesremoval of director(s), except in accordance with Section 1, or (iiiB) any acquisition matter other than the appointment, election or removal of director(s), except (1) in accordance with the recommendations of both ISS and Glass Lewis or (2) with respect to any material publicly announced proposals relating to a merger, acquisition, disposition of all or substantially all of the assets or businesses of the Company or any other business combination involving the Company requiring a vote of its Subsidiariesstockholders of the Company;
(fix) publicly disclose, make a request for any shareholder list or cause or, in a material manner, facilitate the public disclosure (including without limitation through the filing by it of any document or report with the SEC or any other governmental agency or any disclosure to any 4 Note to form: bracketed language to be removed if Block Sale Transferee does not accept the board nomination rights. journalist, member of the media or securities analyst) of any intent, purpose, plan or proposal to obtain any waiver, or consent under, or any amendment of, any of the provisions of Section 2.1, this Section 3.1, or Article 4 (except as described in Section 4.1) or bring any action to (i) contest the validity of Section 2.1, this Section 3.1 or Article 4, or (ii) seek a release from the restrictions contained in Section 2.1, this Section 3.1 or Article 4Company books and records;
(g) unless required by law, make or issue or cause to be made or issued any public disclosure, announcement or statement (including without limitation the filing of any document or report with the SEC or any other governmental agency or any disclosure to any journalist, member of the media or securities analyst) (i) in support of any solicitation described in paragraph (a) above (other than solicitations by the Company), (ii) in support of any matter described in paragraph (c) above, (iii) concerning any potential matter described in paragraph (d) above; (iv) concerning any potential matter described in paragraph (e) above; or (v) negatively commenting upon the Company’s corporate strategy, business, corporate activities, board of directors or management (for the avoidance of doubt, making any factual statement about the Company’s corporate strategy, business, corporate activities, board of directors or management shall not be prohibited by this Section 3.1(g)(v)); or
(hx) enter into any discussions, negotiations, understandings or agreements (whether written or understandings with any Person oral) with respect to any of the foregoing action that RC Ventures is prohibited from taking under this Section 2 or advise, assist or seek to persuade others knowingly encourage any third person to take any action that RC Ventures is prohibited from taking under this Section 2; or
(xi) make any request or submit any proposal to amend the terms of this Agreement other than through non-public communications with the Company or the Board that would not be reasonably determined to trigger public disclosure obligations for any Party.
(b) Except as expressly provided in Section 1 or Section 2(a), RC Ventures shall be entitled to (i) vote any shares of Common Stock that it beneficially owns as RC Ventures determines in its sole discretion and (ii) disclose, publicly or otherwise, how it intends to vote or act with respect to any of the foregoing. Notwithstanding the foregoing, (a) [the restrictions in Sections 3.1(d), 3.1(e), 3.1(f), 3.1(g)(iii), 3.1(g)(iv), 3.1(g)(v) and 3.1(h) (to the extent it relates to any of the foregoing) shall not apply at any time that (i) the Company fails to comply in all material respects with its obligations under Article 5 hereof, which failure continues unremedied for a period of 10 business days following receipt by the Company of a written notice from the Block Sale Transferee of such failure or (ii) the Block Sale Transferee has relinquished its nomination rights pursuant to Article 5 and all Block Sale Transferee nominated directors have resigned; or (b)]5 in the event that (x) the Board of Directors determines that the Company should engage in any transaction described in Section 3.1(e)(i) or 3.1(e)(ii), the Block Sale Transferee shall be permitted to participate in such Board of Directors’ approved transaction as a shareholder on the same terms and conditions as any other shareholder securities of the Company, (y) any shareholder proposal or other matter to be voted on by the Board shareholders of Directors determines that the Company should solicit and the reasons therefor.
(c) Notwithstanding anything in Section 2(a) or elsewhere in this Agreement, nothing in this Agreement shall prohibit or restrict RC Ventures from one or more Persons or enter into discussions with one or more Persons regarding, or invites any other Person or group to make a proposal (without similarly inviting the Block Sale Transferee to make a similar proposal) with respect to an acquisition of (i) all or substantially all of the equity securities or assets of the Company or any of its Subsidiaries (by merger, tender offer or otherwise) or (ii) any material assets or businesses of the Company or any of its Subsidiaries, the Block Sale Transferee shall have the right to make a non-public competing proposal to communicating privately with the Board of Directors in compliance with any written procedures generally applicable to Persons making proposals provided by the Company 5 Note to form: enumerated restrictions to be removed if the Block Sale Transferee does not accept the board nomination rights. or the Board of Directors or (z) any third party that is not an Affiliate of the Block Sale Transferee makes a bona fide offer or proposal, with respect to a matter described in Section 3.1(d) or 3.1(e) above (a “Third Party Proposal”), the Block Sale Transferee (A) shall have the right to make a non-public competing proposal to the Board of Directors and may publicly announce that it has made a competing proposal to the Board of Directors so long as such public announcement does not constitute an offer or a solicitation to any recipient thereof and (B) may tender, exchange or otherwise sell or transfer its Company Common Shares (or other equity securities of the Company) to such third party in accordance with the Third Party Proposal; provided, however, that in the case of clauses (y) and (z), the Block Sale Transferee shall be prohibited from participating with, joining in a group with or providing financing to any such third party). [For the avoidance of doubt, any discussions involving the directors nominated by the Block Sale Transferee pursuant to Article 5 hereof (i) at a meeting of the Board of Directors or (ii) with management of the Company, other members of the Board of Directors or any of the Company’s advisors or representativesofficers regarding any matter, in the case so long as such communications are not intended to, and would not reasonably be expected to, require any public disclosure of clauses (i) and such communications, (ii) communicating with shareholders of the Company and others in a manner that does not otherwise violate and is not inconsistent with Section 1(e)(ii), while acting Section 2(a) or Section 12, or (iii) taking any action necessary (upon the advice of outside legal counsel) to comply with any law, rule or regulation or any action required by any governmental or regulatory authority or stock exchange that has jurisdiction over RC Ventures (provided, that, to the extent practicable, RC Ventures will provide the Company with notice of any such requirement to the extent RC Ventures believes, upon the advice of outside legal counsel, RC Ventures is required to take any action inconsistent with this Agreement pursuant to clause (iii) of this Section 2(c) prior to taking any such action).
(d) Nothing in such directors’ capacity as members of the Board of Directors, Section 2 or elsewhere in this Agreement shall not be deemed to violate limit the exercise in good faith by any New Director (or a Replacement Director) of such person’s fiduciary duties solely in such person’s capacity as a director of the provisions of this Article 3.]6Company.
Appears in 1 contract
Standstill Provisions. During the Standstill Period, unless expressly authorized in writing to do so by a majority of the members of the Board of Directors, acting through a committee of directors that qualify as “independent directors” as defined by applicable stock exchange listing rules [TDC (which termwhich, for purposes of this purposeSection 8.2, will exclude any directors nominated by the Block Sale Transferee)]1shall include TDC, the Block Sale Transferee TCI and all of TDC's and TCI's subsidiaries and Affiliates, as hereinafter defined) shall not, and shall cause its Affiliates not to, directly or indirectly, acting alone acquire beneficial ownership of any Voting Stock (as hereinafter defined), any securities convertible into or exchangeable for Voting Stock, or any other right to acquire Voting Stock (except by way of stock dividends or other distributions or offerings made available to holders of any Voting Stock generally) without the written consent of the Company (following the approval thereof by the Company's Board of Directors), if the effect of such acquisition would be to increase the Voting Power (as part hereinafter defined) of all Voting Stock then owned by TDC, together with the Voting Stock that TDC has a groupright to acquire (including any Remaining Shares), to more than thirty-three percent (33%) of the total Voting Power of the Company at the time in effect (the "Percentage Amount"); provided, however, that:
(a) make, or in any way participate in any solicitation of any proxy [(but TDC may acquire Voting Stock without regard to the exclusion set forth in Rule 14a-1(l)(2)(iv) under the Exchange Act from the definition of “solicitation”)]2 to vote any Company Common Shares (or other equity securities of the Company) with respect to any matter (including, without foregoing limitation, any contested solicitation for the election of directors with respect to the Company), other than solicitations or acting as a participant in support of all of the Company’s nominees [including, without limitation, the nominees of the Block Sale Transferee pursuant to Article 5]3;:
(b) form, join in or in any way participate in a group (for the avoidance of doubt, the Block Sale Transferee shall not be deemed to have formed, joined in or in any way participated in a group with the Company as a result of the Block Sale Transferee’s execution of this Agreement) with respect to the Company Common Shares (or other equity securities of the Company) or deposit any Company Common Shares (or other equity securities of the Company) in a voting trust or similar arrangement or subject any Company Common Shares (or other equity securities of the Company) to any voting agreement or similar arrangement, or grant any proxy with respect to any Company Common Shares (or other equity securities of the Company) (other than to a designated representative of the 1 Note to form: bracketed language to be removed if Block Sale Transferee does not accept the board nomination rights. 2 Note to form: bracketed language to be removed if Block Sale Transferee does not accept the board nomination rights. 3 Note to form: bracketed language to be removed if Block Sale Transferee does not accept the board nomination rights. Company pursuant to a proxy statement of the Company), other than as contemplated by the Governance Agreement or the Stockholders Agreement or the transactions contemplated thereby;
(c) seek to call, or to request the calling of, or call a special meeting of the stockholders of the Company, or seek to make, or make, a stockholder proposal (whether pursuant to Rule 14a-8 under the Exchange Act or otherwise) at any meeting of the stockholders of the Company, or make a request for a list of the Company’s stockholders, or[, other than pursuant to the Block Sale Transferee’s nomination rights in accordance with Article 5 of this Agreement,]4 seek election of a representative to the Board of Directors, seek to place a representative on the Board of Directors or seek the removal of any director from the Board of Directors, or otherwise acting alone, or by participating in a group, seek to control or influence the governance or policies of the Company;
(d) effect or seek to effect (including, without limitation, by entering into any discussions, negotiations, agreements or understandings whether or not legally enforceable with any third Person), offer or propose (whether publicly or otherwise) to effect, or cause or participate in, or in any way assist or facilitate any other Person to effect or seek, offer or propose (whether publicly or otherwise) to effect or participate in any acquisition of any Company Common Shares (or other equity securities of the Company) (or Beneficial Ownership thereof) in excess of the Ownership Limitation, except in accordance with Section 2.1; provided, that, for the avoidance of doubt, the Block Sale Transferee is permitted to Transfer to an unaffiliated third party any Company Common Shares (or other equity securities of the Company) Beneficially Owned by the Block Sale Transferee, subject to the provisions of Article 8 hereof, if applicable;
(e) effect or seek to effect (including, without limitation, by entering into any discussions, negotiations, agreements or understandings whether or not legally enforceable with any third Person), offer or propose (whether publicly or otherwise) to effect, or cause or participate in, or in any way assist or facilitate any other Person to effect or seek, offer or propose (whether publicly or otherwise) to effect or participate in (i) any tender offer or exchange offer, merger, acquisition, share exchange or other business combination involving the Company or any of its Subsidiaries, (ii) any recapitalization, restructuring, liquidation, dissolution or other extraordinary transaction with respect to the Company or any of its Subsidiaries or any material portion of its or their businesses, or (iii) any acquisition of any material assets or businesses of the Company or any of its Subsidiaries;
(f) publicly disclose, or cause or, in a material manner, facilitate the public disclosure (including without limitation through the filing by it of any document or report with the SEC or any other governmental agency or any disclosure to any 4 Note to form: bracketed language to be removed if Block Sale Transferee does not accept the board nomination rights. journalist, member of the media or securities analyst) of any intent, purpose, plan or proposal to obtain any waiver, or consent under, or any amendment of, any of the provisions of Section 2.1, this Section 3.1, or Article 4 (except as described in Section 4.1) or bring any action to (i) contest the validity of Section 2.1, this Section 3.1 or Article 4, or (ii) seek a release from the restrictions contained in Section 2.1, this Section 3.1 or Article 4;
(g) unless required by law, make or issue or cause to be made or issued any public disclosure, announcement or statement (including without limitation the filing of any document or report with the SEC or any other governmental agency or any disclosure to any journalist, member of the media or securities analyst) (i) in support of any solicitation described in paragraph (a) above (other than solicitations by the Company), (ii) in support of any matter described in paragraph (c) above, (iii) concerning any potential matter described in paragraph (d) above; (iv) concerning any potential matter described in paragraph (e) above; or (v) negatively commenting upon the Company’s corporate strategy, business, corporate activities, board of directors or management (for the avoidance of doubt, making any factual statement about the Company’s corporate strategy, business, corporate activities, board of directors or management shall not be prohibited by this Section 3.1(g)(v)); or
(h) enter into any discussions, negotiations, agreements or understandings with any Person with respect to any of the foregoing or advise, assist or seek to persuade others to take any action with respect to any of the foregoing. Notwithstanding the foregoing, (a) [the restrictions in Sections 3.1(d), 3.1(e), 3.1(f), 3.1(g)(iii), 3.1(g)(iv), 3.1(g)(v) and 3.1(h) (to the extent it relates to any of the foregoing) shall not apply at any time that (i) the Company fails to comply in all material respects with its obligations under Article 5 hereof, which failure continues unremedied for a period of 10 business days following receipt by the Company of a written notice from the Block Sale Transferee of such failure or (ii) the Block Sale Transferee has relinquished its nomination rights pursuant to Article 5 and all Block Sale Transferee nominated directors have resigned; or (b)]5 in the event that (x) the Board of Directors determines that the Company should engage in any transaction described in Section 3.1(e)(i) or 3.1(e)(ii), the Block Sale Transferee shall be permitted to participate in such Board of Directors’ approved transaction as a shareholder on the same terms and conditions as any other shareholder of the Company, (y) the Board of Directors determines that the Company should solicit from one or more Persons or enter into discussions with one or more Persons regarding, or invites any other Person or group to make a proposal (without similarly inviting the Block Sale Transferee to make a similar proposal) with respect to an acquisition of (i) all or substantially all of the equity securities or assets of the Company or any of its Subsidiaries (by merger, tender offer or otherwise) or (ii) any material assets or businesses of the Company or any of its Subsidiaries, the Block Sale Transferee shall have the right to make a non-public competing proposal to the Board of Directors in compliance with any written procedures generally applicable to Persons making proposals provided by the Company 5 Note to form: enumerated restrictions to be removed if the Block Sale Transferee does not accept the board nomination rights. or the Board of Directors or (z) any third party that is not an Affiliate of the Block Sale Transferee makes a bona fide offer (other than a nonpublic offer made during the course of negotiations between the Company and a third party) is made by another person or proposalgroup (not affiliated with TDC) to purchase or exchange for cash or other consideration any Voting Stock which, with respect to a matter described if successful, would result in Section 3.1(d) such person or 3.1(e) above (a “Third Party Proposal”), the Block Sale Transferee (A) shall have group owning or having the right to make a nonacquire shares of Voting Stock with aggregate Voting Power of more than thirty-public competing proposal three percent (33%) of the total Voting Power of the Company then in effect and such offer is not withdrawn or terminated prior to the Board of Directors and may publicly announce that it has made a competing proposal to the Board of Directors so long as such public announcement does not constitute TDC making an offer to acquire Voting Stock or a solicitation to any recipient thereof and (B) may tender, exchange or otherwise sell or transfer its Company Common Shares (or other equity securities of the Company) to such third party acquiring Voting Stock in accordance with the Third Party Proposalresponse thereto; provided, however, that the negative covenants of this Section 8.2 shall resume following the withdrawal of a tender offer made in accordance with this Section 8.2(a)(i);
(ii) at any time at least ten (10) years following the case date of clauses this Agreement.
(yb) and TDC will not be (zi) prohibited from purchasing any of the Remaining Shares, (ii) obligated to dispose of Voting Stock, or (iii) deemed to have breached its covenant in this Section 8.2, if the aggregate percentage of the total Voting Power of the Company represented by Voting Stock owned by TDC, or which TDC has a right to acquire, is or would be increased to an amount in excess of the Percentage Amount as a result of a recapitalization of the Company or a repurchase of securities by the Company or any other action taken by the Company or its affiliates.
(c) In the event that TDC shall have purchased or otherwise acquired (including, for this purpose, the Remaining Shares TDC has the right to acquire) any shares of Voting Stock in a transaction permitted by Section 8.2(a)(i) prior to the resumption of the nega- tive covenants of this Section 8.2 or as a result of Section 8.2(b), the Block Sale Transferee percentage set forth in the first paragraph of this Section 8.2 shall be prohibited from participating with, joining in a group with increased to the percentage of Voting Stock owned by TDC after such purchase or providing financing to any such third party). [For the avoidance of doubt, any discussions involving the directors nominated by the Block Sale Transferee pursuant to Article 5 hereof (i) at a meeting of the Board of Directors or (ii) with management of the Company, other members of the Board of Directors or any of the Company’s advisors or representatives, in the case of clauses (i) and (ii), while acting in such directors’ capacity as members of the Board of Directors, shall not be deemed to violate any of the provisions of this Article 3.]6acquisition.
Appears in 1 contract
Samples: Stock Purchase Agreement (At&t Corp)
Standstill Provisions. During the Standstill Period, unless expressly authorized in writing to do so by a majority Each of the members Marcato Stockholders solely on behalf of itself and its respective Affiliates and Associates and each of the Board Oskie Stockholders solely on behalf of Directorsitself and its respective Affiliates and Associates hereby severally and not jointly agrees that from the date hereof until the termination of this Agreement in accordance with Section 5 hereof (the “Termination Date”), acting through a committee neither it nor any of directors that qualify as “independent directors” as defined by applicable stock exchange listing rules [(which term, for this purpose, will exclude any directors nominated by the Block Sale Transferee)]1, the Block Sale Transferee shall notits Affiliates or Associates will, and shall it will cause each of its Affiliates and Associates not to, directly or indirectly, acting alone or as part of a groupin any manner:
(a) makesolicit, or encourage or in any way engage in any solicitation of, any proxies or consents or become a “participant” in a “solicitation” as such terms are defined in Regulation 14A under the Exchange Act (as defined below) of proxies or consents (including, without limitation, any solicitation of consents with respect to the call of a special meeting of stockholders), in each case, with respect to securities of the Company, or call or seek to call, or encourage, support or influence anyone with respect to the call of, a special meeting of stockholders;
(b) advise, encourage, support or influence any person with respect to the voting or disposition of any securities of the Company at any annual or special meeting of stockholders, or seek to do so;
(c) form, join or in any way participate in any solicitation “group” (within the meaning of any proxy [(but without regard to the exclusion set forth in Rule 14a-1(l)(2)(ivSection 13(d)(3) under of the Exchange Act from the definition of “solicitation”)]2 to vote any Company Common Shares (or other equity securities of the CompanyAct) with respect to the Common Stock (other than a “group” that includes all or some of the persons identified on the Group 13D as of the date hereof, but does not include any matter other entities or persons not identified on Group 13D as of the date hereof);
(includingd) deposit any Common Stock in any voting trust or subject any Common Stock to any arrangement or agreement with respect to the voting of any Common Stock, without limitationother than any such voting trust, arrangement or agreement solely among the members of the Marcato-Oskie Group and otherwise in accordance with this Agreement;
(e) seek or encourage any person to submit nominations in furtherance of a “contested solicitation solicitation” for the election or removal of directors with respect to the Company)Company or seek, encourage or take any other than solicitations action with respect to the election or acting as a participant in support removal of all any directors or with respect to the submission of the Company’s nominees [including, without limitation, the nominees of the Block Sale Transferee pursuant to Article 5]3any stockholder proposal;
(bf) form, join in (i) make any proposal for consideration by stockholders at any annual or in any way participate in a group (for the avoidance special meeting of doubt, the Block Sale Transferee shall not be deemed to have formed, joined in or in any way participated in a group with stockholders of the Company as a result of the Block Sale Transferee’s execution of this Agreementor (ii) make any recommendation, suggestion, or other statement, offer or proposal (with or without conditions, publicly or otherwise) with respect to the Company Common Shares (a share repurchase, dividend, self-tender or other equity securities of the Company) or deposit any Company Common Shares (or other equity securities of the Company) change in a voting trust or similar arrangement or subject any Company Common Shares (or other equity securities of the Company) to any voting agreement or similar arrangementcapitalization, or grant any proxy with respect to any Company Common Shares (or other equity securities of the Company) (other than to a designated representative of the 1 Note to form: bracketed language to be removed if Block Sale Transferee does not accept the board nomination rights. 2 Note to form: bracketed language to be removed if Block Sale Transferee does not accept the board nomination rights. 3 Note to form: bracketed language to be removed if Block Sale Transferee does not accept the board nomination rights. Company pursuant to a proxy statement of the Company), other than as contemplated by the Governance Agreement or the Stockholders Agreement or the transactions contemplated thereby;
(c) seek to call, or to request the calling of, or call a special meeting of the stockholders of the Company, or seek to make, or make, a stockholder proposal (whether pursuant to Rule 14a-8 under the Exchange Act or otherwise) at any meeting of the stockholders of the Company, or make a request for a list of the Company’s stockholders, or[, other than pursuant to the Block Sale Transferee’s nomination rights in accordance with Article 5 of this Agreement,]4 seek election of a representative to the Board of Directors, seek to place a representative on the Board of Directors or seek the removal of any director from the Board of Directors, or otherwise acting alone, or by participating in a group, seek to control or influence the governance or policies of the Company;
(d) effect or seek to effect (including, without limitation, by entering into any discussions, negotiations, agreements or understandings whether or not legally enforceable with any third Person), offer or propose (whether publicly or otherwise) to effect, or cause or participate in, or in any way assist or facilitate any other Person to effect or seek, offer or propose (whether publicly or otherwise) to effect or participate in any acquisition of any Company Common Shares (or other equity securities of the Company) (or Beneficial Ownership thereof) in excess of the Ownership Limitation, except in accordance with Section 2.1; provided, that, for the avoidance of doubt, the Block Sale Transferee is permitted to Transfer to an unaffiliated third party any Company Common Shares (or other equity securities of the Company) Beneficially Owned by the Block Sale Transferee, subject to the provisions of Article 8 hereof, if applicable;
(e) effect or seek to effect (including, without limitation, by entering into any discussions, negotiations, agreements or understandings whether or not legally enforceable with any third Person), offer or propose (whether publicly or otherwise) to effect, or cause or participate in, or in any way assist or facilitate any other Person to effect or seek, offer or propose (whether publicly or otherwise) to effect or participate in (i) any tender offer or exchange offer, merger, acquisition, share exchange or other business combination involving the Company or any of its Subsidiariesdisposition, (ii) any consolidation, recapitalization, restructuring, liquidation, dissolution dissolution, or other business combination or extraordinary transaction with respect to transaction, in the case of any of the foregoing involving the Company or any of its Subsidiaries subsidiary, business, division or any material portion of its or their businesses, or (iii) any acquisition of any material assets or businesses Affiliate of the Company or encourage or assist any of its Subsidiaries;
(f) publicly disclose, person or cause or, entity in a material manner, facilitate the public disclosure (including without limitation through the filing by it of any document or report with the SEC or any other governmental agency or any disclosure to any 4 Note to form: bracketed language to be removed if Block Sale Transferee does not accept the board nomination rights. journalist, member of the media or securities analyst) of any intent, purpose, plan or proposal to obtain any waiver, or consent under, or any amendment of, any of the provisions of Section 2.1, this Section 3.1, or Article 4 (except as described in Section 4.1) or bring any action to (i) contest the validity of Section 2.1, this Section 3.1 or Article 4, or (ii) seek a release from the restrictions contained in Section 2.1, this Section 3.1 or Article 4connection therewith;
(g) unless required by lawseek, alone or in concert with others, representation on the Board;
(h) otherwise act, alone or in concert with others to make or issue or cause to be made or issued any public disclosure, announcement or statement (including without limitation the filing of any document or report with the SEC or any other governmental agency or any disclosure to any journalist, member critical of the media or securities analyst) (i) in support of any solicitation described in paragraph (a) above (other than solicitations by the Company), (ii) in support of any matter described in paragraph (c) above, (iii) concerning any potential matter described in paragraph (d) above; (iv) concerning any potential matter described in paragraph (e) above; or (v) negatively commenting upon the Company’s corporate strategy, business, corporate activities, board of its directors or management (for it being agreed that the avoidance prosecution in good faith of doubtlitigation asserting that the Company has breached its obligations under this Agreement, making any factual statement about the Company’s corporate strategyin and of itself, business, corporate activities, board of directors or management shall not be prohibited by constitute a violation of this Section 3.1(g)(vclause (h) to the extent it is necessary in such litigation to describe the facts underlying the asserted breach)); or;
(hi) enter into any discussions, negotiations, agreements arrangements or understandings with any Person third party with respect to the matters set forth in this Section 2; or
(j) take any action which could cause or require the Company or any Affiliate of the Company to make a public announcement regarding any of the foregoing foregoing, seek or adviserequest permission to do any of the foregoing, assist make any request to amend, waive or terminate any provision of this Section 2 (including, without limitation, this Section 2(j)), or make or seek permission to persuade others to take make any action public announcement with respect to any of the foregoing. Notwithstanding anything in this Agreement to the foregoingcontrary (including, (afor the avoidance of doubt, Section 2(f)(ii) [the restrictions in Sections 3.1(dhereof), 3.1(e), 3.1(f), 3.1(g)(iii), 3.1(g)(iv), 3.1(g)(v) and 3.1(h) (prior to the extent it relates to any Termination Date, representatives of members of the foregoing) shall not apply at any time that (i) the Company fails to comply in all material respects with its obligations under Article 5 hereof, which failure continues unremedied for a period of 10 business days following receipt by the Company of a written notice from the Block Sale Transferee of such failure or (ii) the Block Sale Transferee has relinquished its nomination rights pursuant to Article 5 and all Block Sale Transferee nominated directors have resigned; or (b)]5 in the event that (x) the Board of Directors determines that the Company should engage in any transaction described in Section 3.1(e)(i) or 3.1(e)(ii), the Block Sale Transferee Marcato-Oskie Group shall be permitted to participate (i) engage at reasonable intervals in non-public discussions with such Board members of Directors’ approved transaction the senior management of the Company as a shareholder on the same terms Company may designate regarding any of the matters contemplated by Section 2(f)(ii) hereof so long as no member of the Marcato-Oskie Group or any of its Affiliates or Associates or any of their respective employees or representatives directly or indirectly makes any disclosure of such discussions or of the content thereof (x) to any third person (other than employees or advisors of the Marcato Stockholders or the Oskie Stockholders who agree to keep such discussions and conditions content confidential and for whose breach of such agreement the Marcato Stockholders or the Oskie Stockholders, as applicable, are responsible) or (y) publicly (it being agreed that any disclosure in any Schedule 13D filing or any amendment thereof or in any other securities law filing shall be deemed public disclosure not permitted pursuant to this Agreement even if required by law) and as long as any of the foregoing would not require the Company to make any public announcement of any such discussions or matter under any applicable law or rule of any securities exchange, (ii) publicly comment upon and solicit votes in favor of or against any item presented for stockholder approval by the Company (but for the avoidance of doubt not by any shareholder), other shareholder than the election of directors, the ratification of auditors or a proposal put forth by the Company with respect to “say-on-pay” or “say-when-on-pay” at any annual or special meeting of stockholders of the Company, (yiii) publicly comment upon and solicit votes in response to a public announcement by the Company that the Company has entered into an agreement providing for any merger, acquisition, disposition, consolidation, recapitalization, restructuring, liquidation, dissolution, or other business combination or extraordinary transaction in any case that requires the approval of the holders of the Common Stock, (iv) publicly comment upon any public announcement by the Company itself that the Board of Directors determines that the Company should solicit from one or more Persons or enter into discussions with one or more Persons regarding, or invites any other Person or group to make a proposal (without similarly inviting the Block Sale Transferee to make a similar proposal) with respect to an acquisition of (i) all or substantially all of the equity securities or assets of the Company has determined to explore a business combination involving the Company as a whole, which announcement did not result in whole or any in part from (x) a breach of its Subsidiaries (by merger, tender offer or otherwise) this Agreement or (iiy) any material assets or businesses of unsolicited offer for a business combination, and (v) in the Company or any of its Subsidiaries, the Block Sale Transferee shall have the right to make a non-public competing proposal to the Board of Directors in compliance with any written procedures generally applicable to Persons making proposals provided by the Company 5 Note to form: enumerated restrictions to be removed if the Block Sale Transferee does not accept the board nomination rights. or the Board of Directors or (z) event that any third party that is not an Affiliate of the Block Sale Transferee a strategic, industrial company makes a bona fide unsolicited public offer to acquire the Company as a whole which did not result in whole or proposal, with respect to in part from a matter described in Section 3.1(d) or 3.1(e) above (a “Third Party Proposal”), the Block Sale Transferee (A) shall have the right to make a non-public competing proposal to the Board of Directors and may publicly announce that it has made a competing proposal to the Board of Directors so long as such public announcement does not constitute an offer or a solicitation to any recipient thereof and (B) may tender, exchange or otherwise sell or transfer its Company Common Shares (or other equity securities of the Company) to such third party in accordance with the Third Party Proposal; provided, however, that in the case of clauses (y) and (z), the Block Sale Transferee shall be prohibited from participating with, joining in a group with or providing financing to any such third party). [For the avoidance of doubt, any discussions involving the directors nominated by the Block Sale Transferee pursuant to Article 5 hereof (i) at a meeting of the Board of Directors or (ii) with management of the Company, other members of the Board of Directors or any of the Company’s advisors or representatives, in the case of clauses (i) and (ii), while acting in such directors’ capacity as members of the Board of Directors, shall not be deemed to violate any of the provisions breach of this Article 3.]6Agreement, publicly comment upon such offer.
Appears in 1 contract
Samples: Shareholder Agreement (Lear Corp)
Standstill Provisions. During the Standstill Period, unless expressly authorized in writing to do so by a majority (a) Each of the members Lone Star Value Stockholders on behalf of itself and its respective Affiliates and Associates severally and not jointly agrees that from the Board Effective Date until the termination of Directorsthis Agreement in accordance with Section 5 of this Agreement (the “Termination Date”), acting through a committee neither it nor any of directors that qualify as “independent directors” as defined by applicable stock exchange listing rules [(which term, for this purpose, will exclude any directors nominated by the Block Sale Transferee)]1, the Block Sale Transferee shall notits Affiliates or Associates will, and shall it will cause each of its Affiliates and Associates not to, directly or indirectly, acting alone or as part of a groupin any manner:
(ai) makesolicit, or encourage or in any way engage in any solicitation of, any proxies or consents or become a “participant” in a “solicitation” as such terms are defined in Regulation 14A under the Securities Exchange Act of 1934, as amended (the “Exchange Act”), of proxies or consents (including, without limitation, any solicitation of consents with respect to the call of a special meeting of stockholders), in each case, with respect to securities of the Company, or call or seek to call, or encourage, support or influence anyone with respect to the call of, a special meeting of stockholders;
(ii) advise, encourage, support or influence any person with respect to the voting of any securities of the Company at any annual or special meeting of stockholders, or seek to do so;
(iii) form, join or in any way participate in any solicitation “group” (within the meaning of Section 13(d)(3) of the Exchange Act) with respect to the securities of the Company (other than the “group” that includes all or some of the Lone Star Value Stockholders, but does not include any other entities or persons not signatory to this Agreement on the Effective Date);
(iv) deposit any securities of the Company in any voting trust or subject any securities of the Company to any arrangement or agreement with respect to the voting of any proxy [(but without regard to the exclusion set forth in Rule 14a-1(l)(2)(iv) under the Exchange Act from the definition of “solicitation”)]2 to vote any Company Common Shares (or other equity securities of the Company, other than any such voting trust, arrangement or agreement solely among the Lone Star Value Stockholders and otherwise in accordance with this Agreement;
(v) with respect seek or encourage any person to any matter (including, without limitation, any submit nominations in furtherance of a “contested solicitation solicitation” for the election or removal of directors with respect to the Company)Company or seek, encourage or take any other than solicitations or acting as a participant in support of all of the Company’s nominees [including, without limitation, the nominees of the Block Sale Transferee pursuant to Article 5]3;
(b) form, join in or in any way participate in a group (for the avoidance of doubt, the Block Sale Transferee shall not be deemed to have formed, joined in or in any way participated in a group with the Company as a result of the Block Sale Transferee’s execution of this Agreement) action with respect to the election or removal of any directors or with respect to the submission of any stockholder proposal;
(vi) (A) make any proposal for consideration by stockholders at any annual or special meeting of stockholders of the Company Common Shares or (B) make any public suggestion or recommendation or make any public or unsolicited private offer or proposal (with or without conditions) in each case with respect to a share repurchase, dividend, self-tender or other equity securities of the Company) or deposit any Company Common Shares (or other equity securities of the Company) change in a voting trust or similar arrangement or subject any Company Common Shares (or other equity securities of the Company) to any voting agreement or similar arrangementcapitalization, or grant any proxy with respect to any Company Common Shares (or other equity securities of the Company) (other than to a designated representative of the 1 Note to form: bracketed language to be removed if Block Sale Transferee does not accept the board nomination rights. 2 Note to form: bracketed language to be removed if Block Sale Transferee does not accept the board nomination rights. 3 Note to form: bracketed language to be removed if Block Sale Transferee does not accept the board nomination rights. Company pursuant to a proxy statement of the Company), other than as contemplated by the Governance Agreement or the Stockholders Agreement or the transactions contemplated thereby;
(c) seek to call, or to request the calling of, or call a special meeting of the stockholders of the Company, or seek to make, or make, a stockholder proposal (whether pursuant to Rule 14a-8 under the Exchange Act or otherwise) at any meeting of the stockholders of the Company, or make a request for a list of the Company’s stockholders, or[, other than pursuant to the Block Sale Transferee’s nomination rights in accordance with Article 5 of this Agreement,]4 seek election of a representative to the Board of Directors, seek to place a representative on the Board of Directors or seek the removal of any director from the Board of Directors, or otherwise acting alone, or by participating in a group, seek to control or influence the governance or policies of the Company;
(d) effect or seek to effect (including, without limitation, by entering into any discussions, negotiations, agreements or understandings whether or not legally enforceable with any third Person), offer or propose (whether publicly or otherwise) to effect, or cause or participate in, or in any way assist or facilitate any other Person to effect or seek, offer or propose (whether publicly or otherwise) to effect or participate in any acquisition of any Company Common Shares (or other equity securities of the Company) (or Beneficial Ownership thereof) in excess of the Ownership Limitation, except in accordance with Section 2.1; provided, that, for the avoidance of doubt, the Block Sale Transferee is permitted to Transfer to an unaffiliated third party any Company Common Shares (or other equity securities of the Company) Beneficially Owned by the Block Sale Transferee, subject to the provisions of Article 8 hereof, if applicable;
(e) effect or seek to effect (including, without limitation, by entering into any discussions, negotiations, agreements or understandings whether or not legally enforceable with any third Person), offer or propose (whether publicly or otherwise) to effect, or cause or participate in, or in any way assist or facilitate any other Person to effect or seek, offer or propose (whether publicly or otherwise) to effect or participate in (i) any tender offer or exchange offer, merger, acquisition, share exchange or other business combination involving the Company or any of its Subsidiariesdisposition, (ii) any consolidation, recapitalization, restructuring, liquidation, dissolution dissolution, or other business combination or extraordinary transaction with respect to transaction, in the case of any of the foregoing involving the Company or any of its Subsidiaries subsidiary, business, division or any material portion of its or their businesses, or (iii) any acquisition of any material assets or businesses Affiliate of the Company or encourage or assist any of its Subsidiariesperson or entity in connection therewith;
(fvii) publicly discloseother than as provided in this Agreement, seek, alone or cause orin concert with others, in a material manner, facilitate representation on the public disclosure (including without limitation through the filing by it of any document or report with the SEC or any other governmental agency or any disclosure to any 4 Note to form: bracketed language to be removed if Block Sale Transferee does not accept the board nomination rights. journalist, member of the media or securities analyst) of any intent, purpose, plan or proposal to obtain any waiver, or consent under, or any amendment of, any of the provisions of Section 2.1, this Section 3.1, or Article 4 (except as described in Section 4.1) or bring any action to (i) contest the validity of Section 2.1, this Section 3.1 or Article 4, or (ii) seek a release from the restrictions contained in Section 2.1, this Section 3.1 or Article 4Board;
(gviii) unless required except for the receipt of equity compensation paid to a Lone Star Nominee as consideration for his service as a director of the Company (which equity compensation will be disregarded for purposes of this Section 2(a)(viii)), acquire, offer or propose to acquire, or agree to acquire (except by lawway of stock dividends, make stock splits, reverse stock splits or issue other distributions or cause offerings made available to be made or issued any public disclosure, announcement or statement (including without limitation the filing holders of any document Voting Securities (as defined in Section 14, below) generally), directly or report with indirectly, whether by purchase, tender or exchange offer, through the SEC acquisition of control of another person, by joining a partnership, limited partnership, syndicate or any other governmental agency or any disclosure to any journalist, member group (as defined under Section 13(d) of the media Exchange Act), settlement of any barrier option or securities analystotherwise, any Voting Securities if, as a result of such acquisition, the Lone Star Value Stockholders would beneficially own in the aggregate in excess of 10% of the then outstanding Voting Securities;
(ix) make a request for the stockholder list or other Company books and records in their capacity as stockholders (iprovided that this restriction will not apply to the Lone Star Nominees (or their replacements, as applicable) in support their capacity as members of any solicitation described in paragraph (a) above (other than solicitations by the CompanyBoard), (ii) in support of any matter described in paragraph (c) above, (iii) concerning any potential matter described in paragraph (d) above; (iv) concerning any potential matter described in paragraph (e) above; or (v) negatively commenting upon the Company’s corporate strategy, business, corporate activities, board of directors or management (for the avoidance of doubt, making any factual statement about the Company’s corporate strategy, business, corporate activities, board of directors or management shall not be prohibited by this Section 3.1(g)(v)); or;
(hx) enter into any discussions, negotiations, agreements arrangements or understandings with any Person third party with respect to any of the foregoing or advise, assist or seek to persuade others to matters set forth in this Section 2; or
(xi) take any action with respect to challenging the validity or enforceability of this Section 2, or publicly make or in any of the foregoing. Notwithstanding the foregoing, (a) [the restrictions in Sections 3.1(d), 3.1(e), 3.1(f), 3.1(g)(iii), 3.1(g)(iv), 3.1(g)(v) and 3.1(h) (to the extent it relates to way advance publicly any of the foregoing) shall not apply at any time that (i) the Company fails to comply in all material respects with its obligations under Article 5 hereof, which failure continues unremedied for a period of 10 business days following receipt by the Company of a written notice from the Block Sale Transferee of such failure request or (ii) the Block Sale Transferee has relinquished its nomination rights pursuant to Article 5 and all Block Sale Transferee nominated directors have resigned; or (b)]5 in the event that (x) the Board of Directors determines proposal that the Company should engage or Board amend, modify or waive any provision of this Agreement (provided, that the Lone Star Value Stockholders may make confidential requests to the Board to amend, modify or waive any provision of this Section 2, which the Board (excluding the Lone Star Nominees) may accept or reject in any transaction described in Section 3.1(e)(i) or 3.1(e)(ii)its sole discretion, the Block Sale Transferee shall be permitted to participate in such Board of Directors’ approved transaction as a shareholder on the same terms and conditions so long as any other shareholder of such request is not publicly disclosed by the Lone Star Value Stockholders and is made by the Lone Star Value Stockholders in a manner that does not require the public disclosure thereof by the Company, (y) the Board of Directors determines that the Company should solicit from one Lone Star Value Stockholders or more Persons or enter into discussions with one or more Persons regarding, or invites any other Person or group to make a proposal person.
(without similarly inviting the Block Sale Transferee to make a similar proposalb) with respect to an acquisition of (i) all or substantially all of the equity securities or assets of the Company or any of its Subsidiaries (by merger, tender offer or otherwise) or (ii) any material assets or businesses of the Company or any of its Subsidiaries, the Block Sale Transferee shall have the right to make a non-public competing proposal to the Board of Directors in compliance with any written procedures generally applicable to Persons making proposals provided by the Company 5 Note to form: enumerated restrictions to be removed if the Block Sale Transferee does not accept the board nomination rights. or the Board of Directors or (z) any third party that is not an Affiliate of the Block Sale Transferee makes a bona fide offer or proposal, with respect to a matter described in Section 3.1(d) or 3.1(e) above (a “Third Party Proposal”), the Block Sale Transferee (A) shall have the right to make a non-public competing proposal to the Board of Directors and may publicly announce that it has made a competing proposal to the Board of Directors so long as such public announcement does not constitute an offer or a solicitation to any recipient thereof and (B) may tender, exchange or otherwise sell or transfer its Company Common Shares (or other equity securities of the Company) to such third party in accordance with the Third Party Proposal; provided, however, that in the case of clauses (y) and (z), the Block Sale Transferee shall be prohibited from participating with, joining in a group with or providing financing to any such third party). [For the avoidance of doubt, nothing in this Section 2 or elsewhere in this Agreement shall prohibit or restrict the Lone Star Nominees (or their replacements, as applicable) from exercising their rights and fiduciary duties as directors of the Company, subject to the Company’s policies and procedures applicable to all directors of the Company, which rights include, but are not limited to, (1) taking any discussions involving the directors nominated by the Block Sale Transferee pursuant to Article 5 hereof (i) action or making any statement at a any meeting of the Board or of Directors any committee thereof or (ii2) with management making any statement to the Chief Executive Officer, the Chief Financial Officer or any other director of the CompanyCompany in their capacity as directors.
(c) Furthermore, other members for the avoidance of doubt, nothing in this Section 2 or elsewhere in this Agreement shall restrict the Board ability of Directors any Lone Star Value Stockholders from participating as a bidder in any bidding process as part of any strategic review process conducted by the Company or acting as a buyer in any of negotiated transaction with the Company’s advisors or representatives, in the case of clauses (i) and (ii), while acting in such directors’ capacity as members of the Board of Directors, shall not be deemed to violate any of the provisions of this Article 3.]6.
Appears in 1 contract
Samples: Shareholder Agreement (Edgewater Technology Inc/De/)
Standstill Provisions. During the period from the date hereof through the third-year anniversary of the Initial Stock Purchase Date (the "Standstill Period"), unless expressly authorized in writing to do so by a majority the Note Purchaser, the Stock Purchaser and their respective Affiliates will not, without the prior written consent of the members of the Board of Directors, acting through a committee of directors that qualify as “independent directors” as defined by applicable stock exchange listing rules [Company: (which term, for this purpose, will exclude any directors nominated by the Block Sale Transferee)]1, the Block Sale Transferee shall not, and shall cause its Affiliates not toi) acquire, directly or indirectly, acting alone by purchase or otherwise, of record or beneficially, ownership of any Common Stock or other voting securities of the Company if, as part a result of a group:
such acquisition, the Note Purchaser, the Stock Purchaser and their respective Affiliates would own more than 19.5% of the Common Stock or other voting securities of the Company then outstanding; (aii) make, or in any way participate in, any "solicitation" of "proxies" (as such terms are defined or used in any solicitation of any proxy [(but without regard to the exclusion set forth in Rule 14a-1(l)(2)(iv) Regulation 14A under the Exchange Act from the definition of “solicitation”)]2 Act) to vote any Company Common Shares (vote, or other equity securities of the Company) with respect to any matter (including, without limitation, any contested solicitation for the election of directors with respect to the Company), other than solicitations or acting as become a participant in support of all of the Company’s nominees [including, without limitation, the nominees of the Block Sale Transferee pursuant to Article 5]3;
(b) form, join in or "participant" in any way participate "election contest" (as such terms are used in a group (for the avoidance of doubt, the Block Sale Transferee shall not be deemed to have formed, joined in or in any way participated in a group with the Company as a result of the Block Sale Transferee’s execution of this Agreement) with respect to the Company Common Shares (or other equity securities of the Company) or deposit any Company Common Shares (or other equity securities of the Company) in a voting trust or similar arrangement or subject any Company Common Shares (or other equity securities of the Company) to any voting agreement or similar arrangement, or grant any proxy with respect to any Company Common Shares (or other equity securities of the Company) (other than to a designated representative of the 1 Note to form: bracketed language to be removed if Block Sale Transferee does not accept the board nomination rights. 2 Note to form: bracketed language to be removed if Block Sale Transferee does not accept the board nomination rights. 3 Note to form: bracketed language to be removed if Block Sale Transferee does not accept the board nomination rights. Company pursuant to a proxy statement of the Company), other than as contemplated by the Governance Agreement or the Stockholders Agreement or the transactions contemplated thereby;
(c) seek to call, or to request the calling of, or call a special meeting of the stockholders of the Company, or seek to make, or make, a stockholder proposal (whether pursuant to Rule 14a-8 14a-11 under the Exchange Act or otherwiseAct); (iii) at any meeting of the stockholders of the Company, or make a request for a list of the Company’s stockholders, or[, other than pursuant to the Block Sale Transferee’s nomination rights in accordance with Article 5 of this Agreement,]4 seek election of a representative to the Board of Directors, seek to place a representative on the Board of Directors or seek the removal of any director from the Board of Directors, or otherwise acting alone, or by participating in a group, seek to control or influence the governance or policies of the Company;
(d) effect or seek to effect (including, without limitation, by entering into any discussions, negotiations, agreements or understandings whether or not legally enforceable with any third Person), offer initiate or propose (whether publicly or otherwise) any shareholder proposal for submission to effect, or cause or participate in, or in any way assist or facilitate any other Person to effect or seek, offer or propose (whether publicly or otherwise) to effect or participate in any acquisition a vote of any Company Common Shares (or other equity securities of the Company) (or Beneficial Ownership thereof) in excess of the Ownership Limitation, except in accordance with Section 2.1; provided, that, for the avoidance of doubt, the Block Sale Transferee is permitted to Transfer to an unaffiliated third party any Company Common Shares (or other equity securities of the Company) Beneficially Owned by the Block Sale Transferee, subject to the provisions of Article 8 hereof, if applicable;
(e) effect or seek to effect (including, without limitation, by entering into any discussions, negotiations, agreements or understandings whether or not legally enforceable with any third Person), offer or propose (whether publicly or otherwise) to effect, or cause or participate in, or in any way assist or facilitate any other Person to effect or seek, offer or propose (whether publicly or otherwise) to effect or participate in (i) any tender offer or exchange offer, merger, acquisition, share exchange or other business combination involving the Company or any of its Subsidiaries, (ii) any recapitalization, restructuring, liquidation, dissolution or other extraordinary transaction shareholders with respect to the Company or any of its Subsidiaries Affiliates; or (iv) take any material portion action, individually or jointly with any partnership, limited partnership, syndicate or other group or assist any person, corporation, entity or group in taking any action it could not take individually under the terms of this Agreement; provided, that nothing in this Section 12.14 will prohibit the Note Purchaser, the Stock Purchaser or its Affiliates from: (i) participating in any of the activities contemplated by the Transaction Documents; (ii) engaging in any unsolicited discussion initiated by persons other than the Note Purchaser, the Stock Purchaser or their businesses, or Affiliates and communicating the substance of any such discussion to the Company if deemed appropriate; (iii) any acquisition of any material assets or businesses of the Company or any of its Subsidiaries;
(f) publicly disclose, or cause or, in a material manner, facilitate the public disclosure (including without limitation through the filing by it of any document or report communicating with the SEC or any other governmental agency or any disclosure to any 4 Note to form: bracketed language to be removed if Block Sale Transferee does not accept the board nomination rights. journalist, member of the media or securities analyst) of any intent, purpose, plan or proposal to obtain any waiver, or consent under, or any amendment of, any of the provisions of Section 2.1, this Section 3.1, or Article 4 (except as described in Section 4.1) or bring any action to (i) contest the validity of Section 2.1, this Section 3.1 or Article 4, or (ii) seek a release from the restrictions contained in Section 2.1, this Section 3.1 or Article 4;
(g) unless required by law, make or issue or cause to be made or issued any public disclosure, announcement or statement (including without limitation the filing of any document or report with the SEC or any other governmental agency or any disclosure to any journalist, member of the media or securities analyst) (i) in support of any solicitation described in paragraph (a) above (other than solicitations by the Company), (ii) in support of any matter described in paragraph (c) above, (iii) concerning any potential matter described in paragraph (d) above; (iv) concerning any potential matter described in paragraph (e) above; or (v) negatively commenting upon the Company’s corporate strategy, business, corporate activities, board of directors or management (for the avoidance of doubt, making any factual statement about the Company’s corporate strategy, business, corporate activities, board of directors or management shall not be prohibited by this Section 3.1(g)(v)); or
(h) enter into any discussions, negotiations, agreements or understandings with any Person with respect to any of the foregoing or advise, assist or seek to persuade others to take any action with respect to any of the foregoing. Notwithstanding the foregoing, (a) [the restrictions in Sections 3.1(d), 3.1(e), 3.1(f), 3.1(g)(iii), 3.1(g)(iv), 3.1(g)(v) and 3.1(h) (to the extent it relates to any of the foregoing) shall not apply at any time that (i) the Company fails to comply in all material respects with its obligations under Article 5 hereof, which failure continues unremedied for a period of 10 business days following receipt by the Company of a written notice from the Block Sale Transferee of such failure or (ii) the Block Sale Transferee has relinquished its nomination rights pursuant to Article 5 and all Block Sale Transferee nominated directors have resigned; or (b)]5 in the event that (x) the Board of Directors determines that the Company should engage in any transaction described in Section 3.1(e)(i) or 3.1(e)(ii), the Block Sale Transferee shall be permitted to participate in such Board of Directors’ approved transaction as a shareholder on the same terms and conditions as any other shareholder of the Company, (y) the Board of Directors determines that the Company should solicit from one or more Persons or enter into discussions with one or more Persons regarding, or invites any other Person or group to make a proposal (without similarly inviting the Block Sale Transferee to make a similar proposal) with respect to an acquisition of (i) all or substantially all of the equity securities or assets of the Company or any of its Subsidiaries (by merger, tender offer or otherwise) or (ii) any material assets or businesses of the Company or any of its Subsidiaries, the Block Sale Transferee shall have the right to make a non-public competing proposal to the Board of Directors in compliance with any written procedures generally applicable to Persons making proposals provided by the Company 5 Note to form: enumerated restrictions to be removed if the Block Sale Transferee does not accept the board nomination rights. or the Board of Directors or (z) any third party that is not an Affiliate of the Block Sale Transferee makes a bona fide offer or proposal, with respect to a matter described in Section 3.1(d) or 3.1(e) above (a “Third Party Proposal”), the Block Sale Transferee (A) shall have the right to make a non-public competing proposal to the Board of Directors and may publicly announce that it has made a competing proposal to the Board of Directors so long as such public announcement does not constitute an offer or a solicitation to any recipient thereof and (B) may tender, exchange or otherwise sell or transfer its Company Common Shares (or other equity securities of the Company) to such third party in accordance with the Third Party Proposal; provided, however, that in the case of clauses (y) and (z), the Block Sale Transferee shall be prohibited from participating with, joining in a group with or providing financing to any such third party). [For the avoidance of doubt, any discussions involving the directors nominated by the Block Sale Transferee pursuant to Article 5 hereof (i) at a meeting of the Board of Directors or (ii) with management of the Company, other members of the Board of Directors or any of the Company’s advisors or representatives, Company from time to time in a manner similar to other shareholders concerning the case of clauses (i) and (ii), while acting in such directors’ capacity as members views of the Board Note Purchaser or the Stock Purchaser regarding the Company's business policies; (iv) disposing of Directorsits Common Shares in whole or in part or entering into agreements to do so, shall not be deemed to violate any of it being understood that the provisions of this Article 3.]6Agreement apply to the parties hereto and their affiliates and their successors and legal representatives and assigns, but do not run with the Securities; or (v) filing such documents as are required by applicable law and not otherwise inconsistent with the terms of this Agreement. 61 55
Appears in 1 contract
Standstill Provisions. During (a) The standstill period (the “Standstill Period”) begins on the date of this Agreement and shall extend until the earlier to occur of: (1) the date that is six (6) months from the date hereof, (2) the entering of a definitive agreement for the Potential Acquisition, (3) the date of public announcement by the Company that it has entered into a definitive agreement for a competing transaction with any person, and (4) the tenth business day following the commencement of a tender or exchange offer by any person (other than the Lancer Entities) for securities of the Company the consummation of which would constitute a competing transaction, if the Board fails to recommend against its shareholders accepting such offer. Lancer agrees, on behalf of itself and the Lancer Entities, that during the Standstill Period, unless expressly authorized in writing specifically invited to do so by a majority the Board or consented to under the terms of the members of the Board of DirectorsWaiver, acting through a committee of directors that qualify as “independent directors” as defined by applicable stock exchange listing rules [(which term, for this purpose, will exclude any directors nominated by the Block Sale Transferee)]1, the Block Sale Transferee Lancer shall not, and shall cause its Affiliates each other Lancer Entity not to, directly or indirectly, acting in any manner, alone or as part of a groupin concert with others:
(ai) makeacquire, offer, seek or agree to acquire, by purchase or otherwise, or direct others in the acquisition of, any way participate in securities issued by the Company or any solicitation of any proxy [(but without regard to the exclusion set forth in Rule 14a-1(l)(2)(iv) under the Exchange Act from the definition of “solicitation”)]2 to vote any Company Common Shares (or other equity securities of the Company) with respect to any matter its subsidiaries (including, without limitation, any contested solicitation for the election of directors with respect to the Company), other than solicitations or acting as a participant in support of all of the Company’s nominees [including, without limitation, the nominees of the Block Sale Transferee pursuant to Article 5]3;
(b) form, join in or in any way participate in a group (for the avoidance of doubt, outstanding 5.75% Convertible Notes due 2023), securities convertible into or exchangeable for securities issued by the Block Sale Transferee shall not be deemed Company or any of its subsidiaries, rights or options to have formedacquire any securities issued by the Company or any of its subsidiaries or securities convertible into or exchangeable for securities issued by the Company or any its subsidiaries, joined in or any assets of the Company or any of its subsidiaries;
(ii) engage in any way participated in a group swap or hedging transactions or other derivative agreements of any nature with respect to securities issued by the Company as a result or any of its subsidiaries or securities convertible into or exchangeable for securities issued by the Company or any of its subsidiaries that are settled by delivery of securities or assets of the Block Sale TransfereeCompany or any of its subsidiaries;
(iii) engage in any short sale or purchase of any derivative security that derives any significant part of its value from a decline in the market price or value of any securities of the Company or any of its subsidiaries, or enter into any hedging transaction with similar effect;
(iv) publicly propose, recommend or seek to effect (1) any tender or exchange offer for the Company’s execution or any of this Agreementits subsidiaries’ securities or any merger, consolidation, business combination, recapitalization, restructuring, extraordinary dividend, significant share repurchase, issuance of the Company’s or any of its subsidiaries’ then-outstanding equity or similar transactions involving the Company or any of its subsidiaries or (2) any acquisition, sale or disposition of a business or assets representing ten percent (10%) or more of the fair market value of the consolidated assets of the Company and its subsidiaries, the market capitalization of the Company or of the Company’s and its subsidiaries’ consolidated revenues for the most recent twelve (12) month period;
(v) make a stockholder proposal or seek any form of proxy with respect to the Company Common Shares removal, election or appointment of any person to, or representation of any person on, the Board, or becoming a participant with a third party in any solicitation of any such proxies (including a “withhold” or other equity securities of the Companysimilar campaign) or making statements regarding how any Lancer Entity intends to vote with respect to a proposal being voted on by stockholders, or instructing or recommending to other stockholders how to vote with respect to a proposal being voted on by stockholders;
(vi) deposit any Company Common Shares (or other equity securities of the Company) Stock in a voting trust or similar arrangement or subject with any Company Common Shares (or other equity securities of the Company) to any voting agreement or similar arrangement, or grant any proxy with respect to any Company Common Shares (or other equity securities of the Company) (person other than to a designated representative of the 1 Note to form: bracketed language to be removed if Block Sale Transferee does not accept the board nomination rights. 2 Note to form: bracketed language to be removed if Block Sale Transferee does not accept the board nomination rights. 3 Note to form: bracketed language to be removed if Block Sale Transferee does not accept the board nomination rights. Company pursuant to a proxy statement of the Company), other than as contemplated by the Governance Agreement or the Stockholders Agreement or the transactions contemplated therebyLancer Entity;
(cvii) publicly seek to call, or to request the calling of, or call a special meeting of the stockholders of the Company, or seek to make, or make, a stockholder proposal (whether pursuant to Rule 14a-8 under the Exchange Act or otherwise) at any meeting of the stockholders of the Company, or make a request for a list of the Company’s stockholders, or[, other than pursuant to the Block Sale Transferee’s nomination rights in accordance with Article 5 of this Agreement,]4 seek election of a representative to the Board of Directors, seek to place a representative representation on the Board of Directors or seek the removal of any director from member of the Board or encourage any person to submit nominees in furtherance of Directors, or otherwise acting alone, or by participating in a group, seek to control or influence the governance or policies of the Companycontested election;
(dviii) effect or seek to effect (includingform, without limitation, by entering into any discussions, negotiations, agreements or understandings whether or not legally enforceable with any third Person), offer or propose (whether publicly or otherwise) to effect, or cause or participate in, or in any way assist or facilitate any other Person to effect or seek, offer or propose (whether publicly or otherwise) to effect join or participate in any acquisition “group” (as defined in the Securities Exchange Act of any Company Common Shares (or other equity securities of 1934, as amended, and the Companyrules and regulations promulgated hereunder) (or Beneficial Ownership thereof) in excess of the Ownership Limitation, except in accordance with Section 2.1; provided, that, for the avoidance of doubt, the Block Sale Transferee is permitted to Transfer to an unaffiliated third party any Company Common Shares (or other equity securities of the Company) Beneficially Owned by the Block Sale Transferee, subject to the provisions of Article 8 hereof, if applicable;
(e) effect or seek to effect (including, without limitation, by entering into any discussions, negotiations, agreements or understandings whether or not legally enforceable with any third Person), offer or propose (whether publicly or otherwise) to effect, or cause or participate in, or in any way assist or facilitate any other Person to effect or seek, offer or propose (whether publicly or otherwise) to effect or participate in (i) any tender offer or exchange offer, merger, acquisition, share exchange or other business combination involving the Company or any of its Subsidiaries, (ii) any recapitalization, restructuring, liquidation, dissolution or other extraordinary transaction with respect to the Company or any beneficial ownership of its Subsidiaries or any material portion of its or their businesses, or (iii) any acquisition of any material assets or businesses securities of the Company or any of its Subsidiariessubsidiaries;
(fix) publicly disclosemake any public disclosure regarding, or cause oract alone or in concert with others, to seek to control or influence the Board, the Company, its management or policies, any of its securities or assets or any of its businesses or strategy that, in a material mannereach case, facilitate the public disclosure (including without limitation through the filing by it of any document or report would be inconsistent with the SEC other provisions of this Agreement;
(x) make any request for a stockholder list of materials or any other governmental agency or any disclosure to any 4 Note to form: bracketed language to be removed if Block Sale Transferee does not accept the board nomination rights. journalist, member books and records of the media Company under Section 220 of the General Corporation Law of the State of Delaware or securities analystotherwise;
(xi) of any intentpublicly request that the Company amend, purpose, plan or proposal to obtain any waiverwaive, or consent under, consider the amendment or any amendment waiver of, any of the provisions of Section 2.1, provision set forth in this Section 3.1, or Article 4 (except as described in Section 4.1) or bring any action to (i) contest the validity of Section 2.1, this Section 3.1 or Article 4, or (ii) seek a release from the restrictions contained in Section 2.1, this Section 3.1 or Article 42;
(gxii) unless required by law, take any action that could reasonably be expected to require the Company to make or issue or cause to be made or issued any a public disclosure, announcement or statement (including without limitation the filing of any document or report with the SEC or any other governmental agency or any disclosure to any journalist, member of the media or securities analyst) (i) in support of any solicitation described in paragraph (a) above (other than solicitations by the Company), (ii) in support of any matter described in paragraph (c) above, (iii) concerning any potential matter described in paragraph (d) above; (iv) concerning any potential matter described in paragraph (e) above; or (v) negatively commenting upon the Company’s corporate strategy, business, corporate activities, board of directors or management (for the avoidance of doubt, making any factual statement about the Company’s corporate strategy, business, corporate activities, board of directors or management shall not be prohibited by this Section 3.1(g)(v))foregoing; or
(hxiii) enter into any negotiations, arrangements, discussions, negotiations, agreements or understandings with any Person with respect to any of the foregoing others (whether written or advise, assist or seek to persuade others oral) to take any action with respect to any of the foregoing. Notwithstanding the foregoing, or knowingly advise, facilitate, finance (a) [the restrictions in Sections 3.1(dthrough equity, debt or otherwise), 3.1(e)assist, 3.1(f)solicit, 3.1(g)(iii), 3.1(g)(iv), 3.1(g)(v) and 3.1(h) (encourage or seek to the extent it relates persuade any other person or entity to take any action inconsistent with any of the foregoing) shall not apply at any time that . For purposes of this Section 2, the term “competing transaction” means: (i) the Company fails to comply a merger or consolidation, or any other transaction, involving any person in all material respects with its obligations under Article 5 hereofwhich, which failure continues unremedied for a period of 10 business days following receipt by the Company of a written notice from the Block Sale Transferee consummation of such failure transaction, the persons or entities who, immediately before such transaction, had beneficial ownership of the voting power of such person do not continue to beneficially own more than 50% of the voting power of such person or the combined or parent entity or do not have the ability to elect a majority of the directors of such person or combined or parent entity immediately following such transaction, (ii) the Block Sale Transferee has relinquished its nomination rights pursuant to Article 5 and all Block Sale Transferee nominated directors have resigned; purchase or (b)]5 in the event that (x) the Board of Directors determines that the Company should engage in any transaction described in Section 3.1(e)(i) or 3.1(e)(ii), the Block Sale Transferee shall be permitted to participate in such Board of Directors’ approved transaction as a shareholder on the same terms and conditions as any other shareholder of the Company, (y) the Board of Directors determines that the Company should solicit from one or more Persons or enter into discussions with one or more Persons regarding, or invites any other Person or group to make a proposal (without similarly inviting the Block Sale Transferee to make a similar proposal) with respect to an acquisition of (i) all or substantially all of the equity assets of such person and its subsidiaries, taken as a whole (including the acquisition of an interest in affiliates of such person), or (iii) the purchase or other acquisition of beneficial ownership of securities representing 35% or assets more of the voting power of such person by another person or group. Notwithstanding anything herein to the contrary, nothing in this Agreement shall limit the right of the Lancer Entities at any time to confidentially make one or more proposals to the CEO, board of directors or financial advisors of the Company or any of its Subsidiaries (by merger, tender offer or otherwise) or (ii) any material assets or businesses of the Company or any of its Subsidiaries, the Block Sale Transferee shall have the right to make a non-public competing proposal relating to the Board of Directors in compliance with any written procedures generally applicable to Persons making proposals provided by the Company 5 Note to form: enumerated restrictions to be removed if the Block Sale Transferee does not accept the board nomination rights. or the Board of Directors or (z) any third party that is not an Affiliate of the Block Sale Transferee makes a bona fide offer or proposal, with respect to a matter described in Section 3.1(d) or 3.1(e) above (a “Third Party Proposal”), the Block Sale Transferee (A) shall have the right to make a non-public competing proposal to the Board of Directors and may publicly announce that it has made a competing proposal to the Board of Directors so long as such public announcement does not constitute an offer or a solicitation to any recipient thereof and (B) may tender, exchange or otherwise sell or transfer its Company Common Shares (or other equity securities of the Company) to such third party in accordance with the Third Party Proposal; provided, however, that in the case of clauses (y) and (z), the Block Sale Transferee shall be prohibited from participating with, joining in a group with or providing financing to any such third party). [For the avoidance of doubt, any discussions involving the directors nominated by the Block Sale Transferee pursuant to Article 5 hereof (i) at a meeting of the Board of Directors or (ii) with management of the Company, other members of the Board of Directors or any of the Company’s advisors or representatives, in the case of clauses (i) and (ii), while acting in such directors’ capacity as members of the Board of Directors, shall not be deemed to violate any of the provisions of this Article 3.]6Potential Acquisition.
Appears in 1 contract
Standstill Provisions. During Mxxxxxxxx agrees that the “Standstill Period” shall commence on the date of this Agreement and shall terminate on the tenth anniversary hereof.
a. Xxxxxxxxx agrees that, during the Standstill Period, unless expressly authorized in writing to do so by a majority without the prior written consent of the members of the Board of DirectorsBoard, acting through a committee of directors that qualify as “independent directors” as defined by applicable stock exchange listing rules [(which term, for this purpose, will exclude any directors nominated by the Block Sale Transferee)]1, the Block Sale Transferee he shall not, and shall cause its Affiliates not todirectly or indirectly:
(i) acquire, announce an intention to acquire, offer or propose to acquire, or agree to acquire, directly or indirectly, acting alone by purchase or otherwise, beneficial ownership of (A) any Common Stock or direct or indirect rights or options to acquire (through purchase, exchange, conversion or otherwise) any Common Stock, excepting solely Common Stock or other Voting Securities (I) received as part a result of a group:stock dividend, stock distribution or stock split, (II) issued by the Company to Mxxxxxxxx in connection with any reorganization or recapitalization of the Company or (III) issued by the Company in connection with any rights offering;
(aii) make, solicit proxies (or written consents) or assist or participate in any way participate other way, directly or indirectly, in any solicitation of any proxy [proxies (but without regard or written consents), or otherwise become a “participant” in a “solicitation,” as such terms are defined in Instruction 3 of Item 4 of Schedule 14A and Rule 14a-1 of Regulation 14A, respectively, under the Securities Exchange Act of 1934, as amended (the “Exchange Act”), in opposition to the exclusion set forth in Rule 14a-1(l)(2)(iv) under the Exchange Act from the definition of “solicitation”)]2 to vote any Company Common Shares (recommendation or other equity securities proposal of the Company) with respect Board, or recommend or request or induce or attempt to induce any matter (includingother person to take any such actions, without limitationor seek to advise, encourage or influence any contested solicitation for the election of directors other person with respect to the Company)voting of (or the execution of a written consent in respect of) the Common Stock or other Voting Securities, other than solicitations or acting as execute any written consent in lieu of a participant in support of all meeting of the Company’s nominees [including, without limitation, the nominees holders of the Block Sale Transferee pursuant to Article 5]3;
(b) form, join in Common Stock or in any way participate in other Voting Securities or grant a group (for the avoidance of doubt, the Block Sale Transferee shall not be deemed to have formed, joined in or in any way participated in a group with the Company as a result of the Block Sale Transferee’s execution of this Agreement) proxy with respect to the Company voting of the Common Shares (Stock or other equity securities of the Company) or deposit any Company Common Shares (or other equity securities of the Company) in a voting trust or similar arrangement or subject any Company Common Shares (or other equity securities of the Company) Voting Securities to any voting agreement or similar arrangement, or grant any proxy with respect to any Company Common Shares (or other equity securities of the Company) (person other than to a designated representative of the 1 Note to form: bracketed language to be removed if Block Sale Transferee does not accept Board or persons appointed as proxies by the board nomination rights. 2 Note to form: bracketed language to be removed if Block Sale Transferee does not accept the board nomination rights. 3 Note to form: bracketed language to be removed if Block Sale Transferee does not accept the board nomination rights. Company Board or Gabelli or his designee pursuant to a proxy statement of the Company), other than as contemplated by the Governance Agreement or the Stockholders Agreement or the transactions contemplated therebySection III.2 hereof;
(ciii) initiate, propose or submit one or more stockholder proposals or induce or attempt to induce any other person to initiate any stockholder proposal;
(iv) seek to call, call or to request the calling call of, or call a special meeting of the stockholders of the Company, or seek to make, or make, a stockholder proposal (whether pursuant to Rule 14a-8 under the Exchange Act or otherwise) at any meeting of the stockholders of the Company’s stockholders, or make a request for a list of the Company’s stockholders;
(v) form, or[join or in any way participate in a “group” (within the meaning of Section 13(d)(3) of the Exchange Act) for the purpose of acquiring, holding, voting or disposing of any securities of the Company;
(vi) vote for any nominee or nominees for election to the Board, other than pursuant those nominated or supported by the Board, or consent to the Block Sale Transferee’s nomination rights in accordance with Article 5 become a nominee for election as a member of this Agreement,]4 seek election of a representative to the Board of Directorsunless nominated by the Board;
(vii) seek, seek alone or in concert with others, to place a representative or other affiliate or nominee on the Board of Directors or seek the removal of any director from member of the Board or a change in the size or composition of Directorsthe Board;
(viii) deposit any Common Stock or other Voting Securities in a voting trust or enter into any other arrangement or agreement with respect to the voting thereof except pursuant to Section III.2 hereof;
(ix) acquire or agree, offer, seek or propose to acquire, or otherwise acting alonecause to be acquired, ownership (including beneficial ownership) of any of the assets or business of the Company or any rights or options to acquire any such assets or business from any person;
(x) seek, propose, or by participating in make any statement with respect to, or solicit, negotiate with, or provide any information to any person with respect to, a groupmerger, seek to consolidation, acquisition of control or influence other business combination, tender or exchange offer, purchase, sale or transfer of assets or securities, dissolution, liquidation, reorganization, recapitalization, dividend, share repurchase or similar transaction involving the governance Company, its subsidiaries or policies its business, whether or not any such transaction involves a change of control of the Company;
(dxi) effect take any action, alone or seek to effect (including, without limitation, by entering into any discussions, negotiations, agreements or understandings whether or not legally enforceable in concert with any third Person)other person, offer or propose (whether publicly or otherwise) to effectadvise, or cause or participate infinance, or in any way assist or facilitate any other Person to effect or seek, offer or propose (whether publicly or otherwise) to effect or participate in or encourage any acquisition person to take any action which is prohibited to be taken by Mxxxxxxxx or any of his affiliates or associates pursuant to this Agreement, or make any Company Common Shares (investment in or enter into any arrangement with, any other equity securities person that engages, or offers or proposes to engage in any of the Company) (or Beneficial Ownership thereof) in excess of the Ownership Limitation, except in accordance with Section 2.1; provided, that, for the avoidance of doubt, the Block Sale Transferee is permitted to Transfer to an unaffiliated third party any Company Common Shares (or other equity securities of the Company) Beneficially Owned by the Block Sale Transferee, subject to the provisions of Article 8 hereof, if applicableforegoing;
(exii) effect or seek to effect (including, without limitation, by entering into any discussions, negotiations, agreements or understandings whether or not legally enforceable with any third Person), offer or propose (whether publicly or otherwise) to effectdisclose publicly, or cause privately in a manner that could reasonably be expected to become public, any intention, plan or participate inarrangement inconsistent with the foregoing;
(xiii) make any request or demand to inspect the records of the Company or to obtain a shareholders list for the Company or encourage any shareholder or other persons to do so;
(xiv) commence, encourage, or support any derivative action in the name of the Company or any way assist or facilitate any other Person to effect or seek, offer or propose (whether publicly or otherwise) to effect or participate in (i) any tender offer or exchange offer, merger, acquisition, share exchange or other business combination involving class action against the Company or any of its Subsidiaries, (ii) any recapitalization, restructuring, liquidation, dissolution officers or other extraordinary transaction with respect to the Company or any of its Subsidiaries or any material portion of its or their businesses, or (iii) any acquisition of any material assets or businesses of the Company or any of its Subsidiaries;
(f) publicly disclose, or cause or, in a material manner, facilitate the public disclosure (including without limitation through the filing by it of any document or report with the SEC or any other governmental agency or any disclosure to any 4 Note to form: bracketed language to be removed if Block Sale Transferee does not accept the board nomination rights. journalist, member of the media or securities analyst) of any intent, purpose, plan or proposal to obtain any waiver, or consent under, or any amendment of, any of the provisions of Section 2.1, this Section 3.1, or Article 4 (except as described in Section 4.1) or bring any action to (i) contest the validity of Section 2.1, this Section 3.1 or Article 4, or (ii) seek a release from the restrictions contained in Section 2.1, this Section 3.1 or Article 4;
(g) unless required by law, make or issue or cause to be made or issued any public disclosure, announcement or statement (including without limitation the filing of any document or report with the SEC or any other governmental agency or any disclosure to any journalist, member of the media or securities analyst) (i) in support of any solicitation described in paragraph (a) above (other than solicitations by the Company), (ii) in support of any matter described in paragraph (c) above, (iii) concerning any potential matter described in paragraph (d) above; (iv) concerning any potential matter described in paragraph (e) above; or (v) negatively commenting upon the Company’s corporate strategy, business, corporate activities, board of directors or management (for the avoidance of doubt, making any factual statement about the Company’s corporate strategy, business, corporate activities, board of directors or management shall not be prohibited by this Section 3.1(g)(v))directors; or
(hxv) enter into any discussions, negotiations, agreements or understandings with any Person with respect to any of the foregoing or advise, assist or seek to persuade others to take any action with respect to challenging the validity or enforceability of any of the foregoing. Notwithstanding the foregoing, (a) [the restrictions in Sections 3.1(d), 3.1(e), 3.1(f), 3.1(g)(iii), 3.1(g)(iv), 3.1(g)(v) and 3.1(h) (to the extent it relates to any of the foregoing) shall not apply at any time that (i) the Company fails to comply in all material respects with its obligations under Article 5 hereof, which failure continues unremedied for a period of 10 business days following receipt by the Company of a written notice from the Block Sale Transferee of such failure or (ii) the Block Sale Transferee has relinquished its nomination rights pursuant to Article 5 and all Block Sale Transferee nominated directors have resigned; or (b)]5 in the event that (x) the Board of Directors determines that the Company should engage in any transaction described in Section 3.1(e)(i) or 3.1(e)(ii), the Block Sale Transferee shall be permitted to participate in such Board of Directors’ approved transaction as a shareholder on the same terms and conditions as any other shareholder of the Company, (y) the Board of Directors determines that the Company should solicit from one or more Persons or enter into discussions with one or more Persons regarding, or invites any other Person or group to make a proposal (without similarly inviting the Block Sale Transferee to make a similar proposal) with respect to an acquisition of (i) all or substantially all of the equity securities or assets of the Company or any of its Subsidiaries (by merger, tender offer or otherwise) or (ii) any material assets or businesses of the Company or any of its Subsidiaries, the Block Sale Transferee shall have the right to make a non-public competing proposal to the Board of Directors in compliance with any written procedures generally applicable to Persons making proposals provided by the Company 5 Note to form: enumerated restrictions to be removed if the Block Sale Transferee does not accept the board nomination rights. or the Board of Directors or (z) any third party that is not an Affiliate of the Block Sale Transferee makes a bona fide offer or proposal, with respect to a matter described in Section 3.1(d) or 3.1(e) above (a “Third Party Proposal”), the Block Sale Transferee (A) shall have the right to make a non-public competing proposal to the Board of Directors and may publicly announce that it has made a competing proposal to the Board of Directors so long as such public announcement does not constitute an offer or a solicitation to any recipient thereof and (B) may tender, exchange or otherwise sell or transfer its Company Common Shares (or other equity securities of the Company) to such third party in accordance with the Third Party Proposal; provided, however, that in the case of clauses (y) and (z), the Block Sale Transferee shall be prohibited from participating with, joining in a group with or providing financing to any such third party). [For the avoidance of doubt, any discussions involving the directors nominated by the Block Sale Transferee pursuant to Article 5 hereof (i) at a meeting of the Board of Directors or (ii) with management of the Company, other members of the Board of Directors or any of the Company’s advisors or representatives, in the case of clauses (i) and (ii), while acting in such directors’ capacity as members of the Board of Directors, shall not be deemed to violate any of the provisions of this Article 3.]6Section III.
Appears in 1 contract
Samples: Exchange and Standstill Agreement (Gamco Investors, Inc. Et Al)
Standstill Provisions. During (a) Amazon agrees that from the date of this Agreement until such time as the number of Warrant Shares held by Amazon or its subsidiaries or remaining unexercised under the Warrant is less than two percent (2%) of the outstanding shares of the Company (such period, the “Standstill Period”), unless expressly authorized in writing to do so by a majority without the prior written approval of the members of the Board of DirectorsBoard, acting through a committee of directors that qualify as “independent directors” as defined by applicable stock exchange listing rules [(which term, for this purpose, will exclude any directors nominated by the Block Sale Transferee)]1, the Block Sale Transferee Amazon shall not, directly or indirectly, and shall cause its Affiliates subsidiaries not to, directly or indirectly, acting alone or as part of a group:
(ai) acquire, agree to acquire, propose or offer to acquire, by purchase or otherwise, Equity Securities or Derivative Instruments of the Company, other than:
A. Warrant Shares acquired by Amazon or its subsidiaries in accordance with the Transaction Documents;
B. any Ordinary Shares acquired by Amazon or its subsidiaries in accordance with the Prior Warrant;
C. as a result of any stock split, stock dividend or distribution, other subdivision, reorganization, reclassification or similar capital transaction involving Equity Securities of the Company in accordance with this Agreement; or
D. pursuant to and in accordance with Section 4.4(b)(i) and Section 4.4(b)(ii);
(ii) make, or in any way participate or engage in, any “solicitation” of “proxies” (as such terms are used in any solicitation the proxy rules of any proxy [(but without regard the Commission irrespective of whether those rules apply to the exclusion set forth in Rule 14a-1(l)(2)(ivCompany or not) under (whether or not relating to the Exchange Act from the definition election or removal of “solicitation”)]2 directors) to vote any Voting Securities, or disclose how Amazon intends to vote its Shares on any contested election of directors or any contested proposal relating to an Acquisition Proposal unless such disclosure is (A) to a Governmental Entity and (B) determined by Amazon in good faith, based on the advice of its legal counsel, to be reasonably required by Applicable Law;
(iii) call, or seek to call, a meeting of the stockholders of the Company Common Shares (or other equity securities initiate any stockholder proposal for action by stockholders of the Company) with respect to any matter (including, without limitation, any contested solicitation for the election of directors with respect to the Company), other than solicitations or acting as a participant in support of all of the Company’s nominees [including, without limitation, the nominees of the Block Sale Transferee pursuant to Article 5]3;
(biv) formnominate or seek to nominate, join in directly or in indirectly, any way participate in a group (for the avoidance of doubt, the Block Sale Transferee shall not be deemed to have formed, joined in or in any way participated in a group with the Company as a result of the Block Sale Transferee’s execution of this Agreement) with respect Person to the Company Common Shares Board;
(or other equity securities of the Companyv) or deposit any Company Common Shares (or other equity securities of the Company) Voting Securities in a voting trust or similar arrangement contract or agreement or subject any Company Common Shares (or other equity securities of the Company) Voting Securities to any voting agreement agreement, pooling arrangement or similar arrangement, or grant any proxy with respect to any Company Common Shares Voting Securities (or other equity securities of the Company) (in each case, other than to the Company or a designated representative Person specified by the Company in a proxy card (paper or electronic) provided to stockholders of the 1 Note to form: bracketed language to be removed if Block Sale Transferee does not accept the board nomination rights. 2 Note to form: bracketed language to be removed if Block Sale Transferee does not accept the board nomination rights. 3 Note to form: bracketed language to be removed if Block Sale Transferee does not accept the board nomination rights. Company pursuant to a proxy statement by or on behalf of the Company), other than as contemplated by the Governance Agreement or the Stockholders Agreement or the transactions contemplated thereby;
(cvi) seek make any public announcement with respect to, enter, agree to callenter, propose or offer to request the calling of, or call a special meeting of the stockholders of the Company, or seek to make, or make, a stockholder proposal (whether pursuant to Rule 14a-8 under the Exchange Act or otherwise) at any meeting of the stockholders of the Company, or make a request for a list of the Company’s stockholders, or[, other than pursuant to the Block Sale Transferee’s nomination rights in accordance with Article 5 of this Agreement,]4 seek election of a representative to the Board of Directors, seek to place a representative on the Board of Directors or seek the removal of any director from the Board of Directors, or otherwise acting alone, or by participating in a group, seek to control or influence the governance or policies of the Company;
(d) effect or seek to effect (including, without limitation, by entering enter into any discussionsmerger, negotiationsbusiness combination, agreements or understandings whether or not legally enforceable with any third Person)recapitalization, offer or propose (whether publicly or otherwise) to effectrestructuring, or cause or participate change-in, or in any way assist or facilitate any other Person to effect or seek, offer or propose (whether publicly or otherwise) to effect or participate in any acquisition of any Company Common Shares (-control transaction or other equity securities of the Company) (or Beneficial Ownership thereof) in excess of the Ownership Limitation, except in accordance with Section 2.1; provided, that, for the avoidance of doubt, the Block Sale Transferee is permitted to Transfer to an unaffiliated third party any Company Common Shares (or other equity securities of the Company) Beneficially Owned by the Block Sale Transferee, subject to the provisions of Article 8 hereof, if applicable;
(e) effect or seek to effect (including, without limitation, by entering into any discussions, negotiations, agreements or understandings whether or not legally enforceable with any third Person), offer or propose (whether publicly or otherwise) to effect, or cause or participate in, or in any way assist or facilitate any other Person to effect or seek, offer or propose (whether publicly or otherwise) to effect or participate in (i) any tender offer or exchange offer, merger, acquisition, share exchange or other business combination similar extraordinary transaction involving the Company or any of its Subsidiariessubsidiaries, (ii) any recapitalization, restructuring, liquidation, dissolution or other extraordinary transaction with respect to the Company or any purchase of its Subsidiaries or any a material portion of the assets, properties or Equity Securities of the Company, other than acquisitions of Equity Securities as follows:
A. Warrant Shares acquired by Amazon or its subsidiaries in accordance with the Transaction Documents;
B. any Ordinary Shares acquired by Amazon or their businesses, or (iii) any acquisition its subsidiaries in accordance with the Prior Warrant;
C. as a result of any material assets stock split, stock dividend or businesses distribution, other subdivision, reorganization, reclassification or similar capital transaction involving Equity Securities of the Company in accordance with the this Agreement;
D. pursuant to and in accordance with Section 4.4(b)(i) and Section 4.4(b)(ii); or
E. Equity Securities of the Company representing less than 5% of the outstanding Ordinary Shares held by a Person acquired by Amazon or its Affiliates; provided that such Equity Securities of the Company were acquired by such acquired Person prior to it entering into an agreement with Amazon to be acquired and not in contemplation of, or in connection with, Amazon’s acquisition of such Person and Amazon agrees to dispose of those Equity Securities and to reasonably cooperate with the Company to establish a reasonable timetable and other reasonable parameters for so doing so as to minimize the impact of such disposition on the trading market for the Ordinary Shares; provided that in connection with such disposition, Amazon shall not be required to take any action that would be likely to adversely affect the value of its Subsidiariesthe Equity Securities;
(fvii) publicly discloseotherwise act, alone or cause orin concert with others, in a material manner, facilitate to seek to control or influence the public disclosure (including without limitation through management or the filing by it of any document or report with the SEC or any other governmental agency or any disclosure to any 4 Note to form: bracketed language to be removed if Block Sale Transferee does not accept the board nomination rights. journalist, member policies of the media or securities analyst) of any intent, purpose, plan or proposal to obtain any waiver, or consent under, or any amendment of, any of the provisions of Section 2.1, this Section 3.1, or Article 4 (except as described in Section 4.1) or bring any action to (i) contest the validity of Section 2.1, this Section 3.1 or Article 4, or (ii) seek a release from the restrictions contained in Section 2.1, this Section 3.1 or Article 4;
(g) unless required by law, make or issue or cause to be made or issued any public disclosure, announcement or statement (including without limitation the filing of any document or report with the SEC or any other governmental agency or any disclosure to any journalist, member of the media or securities analyst) (i) in support of any solicitation described in paragraph (a) above (other than solicitations by the Company), (ii) in support of any matter described in paragraph (c) above, (iii) concerning any potential matter described in paragraph (d) above; (iv) concerning any potential matter described in paragraph (e) above; or (v) negatively commenting upon the Company’s corporate strategy, business, corporate activities, board of directors or management Company (for the avoidance of doubt, making excluding any factual statement about such act to the Company’s corporate strategyextent in its capacity as a commercial counterparty, businesscustomer, corporate activitiessupplier, board of directors industry participant or management shall not be prohibited by this Section 3.1(g)(vthe like)); or;
(hviii) take any action that would reasonably be expected to require the Company to make a public announcement regarding any of the events described above;
(ix) advise or knowingly assist or knowingly encourage or enter into any discussions, negotiations, agreements or understandings arrangements with any Person other Persons in connection with the foregoing;
(x) form, join or in any way participate in a Group (other than with its subsidiary that is bound by the restrictions of this Section 4.5(a) or a Group that consists solely of Amazon and/or any of its Affiliates), with respect to any Voting Securities or otherwise in connection with any of the foregoing foregoing; or
(xi) publicly disclose any intention, plan or advise, assist or seek to persuade others to take any action proposal with respect to any of the foregoing. Notwithstanding In addition, Amazon shall not, directly or indirectly, and shall not permit any of its subsidiaries, directly or indirectly, to, contest the foregoingvalidity of this Section 4.5 or, (a) [the restrictions in Sections 3.1(dsubject to Section 4.5(b), 3.1(e)seek a waiver, 3.1(f), 3.1(g)(iii), 3.1(g)(iv), 3.1(g)(v) and 3.1(hamendment or release of any provisions of this Section 4.5 (including this sentence) (whether by legal action or otherwise).
(b) Notwithstanding anything to the extent it relates to contrary contained herein or in any of the foregoingother Transaction Documents, including Section 4.5(a) hereof, Amazon shall not apply at any time that be prohibited or restricted from:
(i) making and submitting to the Company fails to comply in all material respects with its obligations under Article 5 hereofand/or the Board, which failure continues unremedied any Acquisition Proposal on a non-publicly disclosed or announced basis, or any confidential request for a period of 10 business days following receipt by the Company and/or the Board to waive, amend or provide a release of a written notice from any provision of this Section 4.5 (whether or not in connection with such Acquisition Proposal), provided that Amazon shall not submit any request, proposal or offer that would be reasonably likely to obligate the Block Sale Transferee of Company to publicly disclose such failure request, proposal or offer; and
(ii) the Block Sale Transferee has relinquished its nomination rights pursuant making and submitting to Article 5 and all Block Sale Transferee nominated directors have resigned; or (b)]5 in the event that (x) the Board of Directors determines that the Company should engage in any transaction described in Section 3.1(e)(i) or 3.1(e)(ii), the Block Sale Transferee shall be permitted to participate in such Board of Directors’ approved transaction as a shareholder on the same terms and conditions as any other shareholder of the Company, the Board, and/or the Company’s stockholders, following any Acquisition Proposal received (yor entered into) by the Company, the Board of Directors determines that or the Company should solicit from one or more Persons or enter into discussions with one or more Persons regarding, or invites Company’s stockholders by any other Person or group to make a proposal (without similarly inviting the Block Sale Transferee to make a similar proposal) with respect to an acquisition of (i) all or substantially all of the equity securities or assets of the Company Group other than Amazon or any of its Subsidiaries subsidiaries that is, was or becomes, publicly disclosed or announced (including as a result of being approved by merger, tender offer or otherwise) or (ii) any material assets or businesses of the Company or any of its Subsidiaries, the Block Sale Transferee shall have the right to make a non-public competing proposal to the Board or otherwise the subject of Directors in compliance any agreement, contract or understanding with any written procedures generally applicable to Persons making proposals provided by the Company 5 Note to form: enumerated restrictions to be removed if Company) (the Block Sale Transferee does not accept the board nomination rights. or the Board of Directors or (z) any third party that is not an Affiliate of the Block Sale Transferee makes a bona fide offer or proposal, with respect to a matter described in Section 3.1(d) or 3.1(e) above (a “Third Party Original Public Acquisition Proposal”), the Block Sale Transferee a Qualifying Public Acquisition Proposal (A) shall have the right to make a non-public competing proposal to the Board of Directors and may publicly announce that it has made a competing proposal to the Board of Directors so long as which such public announcement does not constitute an offer or a solicitation to any recipient thereof and (B) may tenderQualifying Public Acquisition Proposal may, exchange or otherwise sell or transfer its Company Common Shares (or other equity securities of the Company) to such third party in accordance with the Third Party Proposal; provided, however, that in the case of clauses (y) and (z), the Block Sale Transferee shall be prohibited from participating with, joining in a group with or providing financing to any such third party). [For for the avoidance of doubt, any discussions involving include requests for the directors nominated by the Block Sale Transferee pursuant to Article 5 hereof (i) at a meeting of Company and/or the Board to waive, amend or provide a release of Directors any provision of this Section 4.5), or from taking any other action, whether or not otherwise restricted by Section 4.5(a), in connection with evaluating, making, submitting, negotiating, effectuating or implementing any such Qualifying Public Acquisition Proposal (ii) with management of the Company, other members of the Board of Directors or any of the Company’s advisors amendment, supplement or representatives, in the case of clauses (i) and (iimodification thereto), while acting in such directors’ capacity as members of the Board of Directors, shall not be deemed to violate any of the provisions of this Article 3.]6.
Appears in 1 contract
