Standstill Restrictions. Section 6.1 Until the later of (x) the time that the Investor’s Ownership Percentage is less than 25% of the Diluted Common Shares and (y) the third anniversary of the Original XXX Date (and, in the case of (iv) – (vii), only for so long as the designees of Investor under Section 2.1(a) are seated on the Board pursuant to Section 2.1 and Section 2.4(b) and other than with respect to the election of the Investor Designees), neither the Investor nor any Investor Affiliate shall (i) except as provided in Section 5, directly or indirectly acquire, agree to acquire, or offer to acquire, beneficial ownership of any equity securities of the Company, any warrant or option to purchase such securities, any security convertible into any such securities, or any other right to acquire such securities, other than the Common Stock issued pursuant to the CoyCo Transaction Agreement, the Converted Investor Warrant, Common Stock acquired upon exercise of the Converted Investor Warrant and any Common Stock paid as dividends or as otherwise would not increase the Investor’s beneficial ownership of the Company’s Common Stock by greater than 1% on an as-converted basis, (ii) bring any action or otherwise act to contest the validity of the restrictions set forth in this Section 6, or seek a release of such restrictions, (iii) deposit Common Stock in a voting trust or similar arrangement or subject any Common Stock to any voting agreement, pooling arrangement or similar arrangement, or grant any proxy with respect to any Common Stock to any person not affiliated with the Investor or Company management; (iv) make, or in any way participate or engage in, directly or indirectly, any solicitation of proxies to vote, or seek to advise or influence any person with respect to the voting of, any voting securities of the Company or any of Subsidiary of the Company, (v) form, join or in any way participate in a “group” (within the meaning of Section 13(d)(3) of the Exchange Act) with respect to any voting securities of the Company or any Subsidiary of the Company except for any group constituting solely of the Investor and Investor Affiliates, (vi) seek the removal of any directors from the Board or a change in the size or composition of the Board (including, without limitation, voting for any directors not nominated by the Board), except as otherwise provided in Section 2.4(b), (vii) call, request the calling of, or otherwise seek or assist in the calling of a special meeting of the shareholders of the Company, (viii) disclose any intention, plan or arrangement prohibited by, or inconsistent with, the foregoing or (ix) make, or take, any action that would reasonably be expected to cause the Company to make a public announcement regarding any intention of the Investor to take an action that would be prohibited by the foregoing; provided, however, that the foregoing shall not restrict the Investor from complying with applicable law or the ability of the Investor Designees or other directors appointed or elected to the Board from exercising their fiduciary duties or powers as directors. Section 6.2 Notwithstanding the foregoing, if the Board decides to engage in a process that could give rise to a change of control of the Company, the Company shall invite the Investor to participate in such process on the terms and conditions generally made available to the other participants in such process; provided, however, that in the event the Investor participates in such process, each Investor Designee shall recuse himself or herself from voting on, or otherwise receiving any confidential information regarding, matters in connection with the process; provided, further, however, that, following the termination of the Investor’s participation in any process, the Investor’s right to vote on, and receive confidential information about, the process shall be reinstated. In addition, if requested by the Board, the Investor may submit a confidential private acquisition proposal to the Board and respond to any related inquiries from the Board, provided that any such proposal shall be conditioned on approval of the Board.
Appears in 2 contracts
Samples: Investor Rights Agreement (R1 RCM Inc. /DE), Investor Rights Agreement (R1 RCM Inc.)
Standstill Restrictions. Section 6.1 Until the later of (x) the time that the Investor’s Ownership Percentage is less than 25% of the Diluted Common Shares and (y) the third anniversary of the Original XXX Date (and, in the case of (iv) – (vii), only for For so long as the designees of Investor under Section 2.1(a) are seated on Oaktree Shareholders and their Affiliates in the Board pursuant to Section 2.1 and Section 2.4(b) and other than with respect to the election aggregate beneficially own at least 10% of the Investor Designees)outstanding Voting Securities of the Company, neither the Investor nor any Investor Affiliate Oaktree Shareholders and their Affiliates shall not, directly or indirectly, acquire (i) except as provided in Section 5, directly or indirectly acquire, agree to acquire, or offer to acquire, the beneficial ownership of any equity securities additional Voting Securities of the Company, any warrant or option to purchase such securities, any security convertible into any such securities, or (ii) the beneficial ownership of any other right Equity Securities of the Company that derive their value from any Voting Securities of the Company or (iii) any rights, options or other derivative securities or contracts or instruments to acquire such securities, other than the Common Stock issued pursuant to the CoyCo Transaction Agreement, the Converted Investor Warrant, Common Stock acquired upon exercise of the Converted Investor Warrant and any Common Stock paid as dividends or as otherwise would not increase the Investor’s beneficial ownership that derive their value from such Voting Securities or other Equity Securities, in each case of the Company’s Common Stock by greater than 1% on an as-converted basisclauses (i), (ii) bring and (iii), if, immediately after giving effect to any action or otherwise act to contest such acquisition, Oaktree Shareholders and their Affiliates would beneficially own in the validity aggregate more than a percentage of the outstanding Voting Securities of the Company equal to (A) the Oaktree Shareholders’ ownership percentage of the Voting Securities of the Company immediately after the closing of the Merger (i.e., approximately 61.3%) plus (B) 2.5%. The foregoing restrictions set forth shall not apply to participation by the Oaktree Shareholders or their Affiliates in: (i) pro rata primary offerings of Equity Securities of the Company based on number of outstanding Voting Securities held or (ii) acquisitions of Equity Securities of the Company that have received Disinterested Director Approval (as defined below). For so long as the Oaktree Shareholders and their Affiliates in this Section 6the aggregate beneficially own at least 10% of the Voting Securities of the Company, unless specifically invited in writing by the Board (with Disinterested Director Approval), neither Oaktree nor any of their Affiliates shall in any manner, directly or seek a release of such restrictionsindirectly, (iiii) deposit Common Stock in a voting trust enter into any tender or similar arrangement exchange offer, merger, acquisition transaction or subject other business combination or any Common Stock to any voting agreementrecapitalization, pooling arrangement restructuring, liquidation, dissolution or similar arrangementother extraordinary transaction involving the Company, or grant any proxy with respect to any Common Stock to any person not affiliated with the Investor or Company management; (ivii) make, or in any way participate or engage in, directly or indirectly, any solicitation “solicitation” of proxies “proxies,” “consents” or “authorizations” (as such terms are used in the proxy rules of the SEC promulgated under the Exchange Act) to vote, or seek to advise or influence any person other than the Oaktree Shareholders with respect to the voting of, any voting securities Voting Securities of the Company (other than with respect to the nomination of the Oaktree Designees and any other nominees proposed by the Nominating and Corporate Governance Committee), (iii) otherwise act, alone or in concert with third parties, to seek to control or influence the management, Board or policies of the Company or any of Subsidiary its Subsidiaries (other than with respect to the nomination of the CompanyOaktree Designees and any other nominees proposed by the Nominating and Corporate Governance Committee), or (viv) formenter into any negotiations, join arrangements or in understandings with any way participate in a “group” (within the meaning of Section 13(d)(3) of the Exchange Act) third party with respect to any voting securities of the Company or any Subsidiary of foregoing activities. However, if (i) the Company except for any group constituting solely publicly announces its intent to pursue a tender offer, merger, sale of the Investor and Investor Affiliates, (vi) seek the removal of any directors from the Board all or a change in the size or composition of the Board (including, without limitation, voting for any directors not nominated by the Board), except as otherwise provided in Section 2.4(b), (vii) call, request the calling of, or otherwise seek or assist in the calling of a special meeting of the shareholders substantially all of the Company’s assets or any similar transaction, (viii) disclose any intention, plan or arrangement prohibited bywhich in each such case would result in a Change of Control Transaction, or inconsistent withany recapitalization, the foregoing restructuring, liquidation, dissolution or (ix) make, or take, any action that would reasonably be expected to cause other extraordinary transaction involving the Company and its subsidiaries, taken as a whole, then the Oaktree Shareholders are permitted to privately make a public announcement regarding any intention of the Investor to take an action that would be prohibited by the foregoing; provided, however, that the foregoing shall not restrict the Investor from complying with applicable law offer or the ability of the Investor Designees or other directors appointed or elected to the Board from exercising their fiduciary duties or powers as directors.
Section 6.2 Notwithstanding the foregoing, if the Board decides to engage in a process that could give rise to a change of control of the Company, the Company shall invite the Investor to participate in such process on the terms and conditions generally made available to the other participants in such process; provided, however, that in the event the Investor participates in such process, each Investor Designee shall recuse himself or herself from voting on, or otherwise receiving any confidential information regarding, matters in connection with the process; provided, further, however, that, following the termination of the Investor’s participation in any process, the Investor’s right to vote on, and receive confidential information about, the process shall be reinstated. In addition, if requested by the Board, the Investor may submit a confidential private acquisition proposal to the Board and respond (ii) if the Board approves, recommends or accepts a buyout transaction with an Unaffiliated Buyer, the restrictions of the Oaktree Shareholders’ participation in such transaction shall cease to any related inquiries from the Boardapply, provided except that any such proposal shall actions must be conditioned on approval discontinued upon the termination or abandonment of the Boardapplicable buyout transaction (unless the Board determines otherwise with Disinterested Director Approval).
Appears in 2 contracts
Samples: Merger Agreement (Star Bulk Carriers Corp.), Merger Agreement (Star Bulk Carriers Corp.)
Standstill Restrictions. Section 6.1 Until From and after the later of Effective Time until the one (x1) the time that the Investor’s Ownership Percentage is less than 25% of the Diluted Common Shares and (y) the third year anniversary of the Original XXX Date (anddate on which the S Shareholders, in the case of aggregate, cease to Beneficially Own Voting Securities representing at least the Ownership Threshold (iv) – (viithe "Standstill Period"), only for so long each Shareholder agrees that, without the prior written consent of the Board, such Shareholder shall not, and shall cause each of its and their Affiliates and, shall use reasonable endeavours to cause, its and their Representatives acting on their behalf not to, directly or indirectly, alone or acting together with any other Person, except as otherwise (A) expressly set forth in this Clause 3.1 or (B) provided in the designees Combination Agreement and/or the Firewater One Shareholder Agreement:
(a) acquire, offer to acquire or agree to acquire Beneficial Ownership of Investor under Section 2.1(aany Voting Securities that would result in (a) the Shareholders together with the Shareholders' Affiliates Beneficially Owning Voting Securities in excess of the Ownership Limit or (b) Oxford Beneficially Owning Voting Securities in excess of the amount of Oxford Shares Beneficially Owned by it immediately following the Distribution, as such amount may be reduced from time to time as a result of any Transfers by Oxford of Oxford Shares;
(b) acquire, offer to acquire or agree to acquire the Company or any assets of the Company or any of its Subsidiaries that are seated on material to the Board pursuant operations, financial condition or prospects of the Company and its Subsidiaries, taken as a whole (it being understood that this sub-clause (b) shall not apply to Section 2.1 any transaction in the ordinary course of business between the Company and Section 2.4(bits Affiliates and Oxford and its Affiliates);
(c) and induce or attempt to induce any third party to propose or offer to acquire Beneficial Ownership of Voting Securities (other than Shareholder Shares as and to the extent permitted in accordance with Clause 4);
(d) initiate or make a proposal for any scheme of arrangement, merger, tender, takeover or exchange offer, business combination, reorganisation, restructuring, recapitalisation or other extraordinary transaction with respect to the election Company and any of its Subsidiaries;
(e) seek the nomination, appointment or removal of any Directors or seek a change in the composition or size of the Investor Designees), neither Board; provided that Capricorn shall be entitled to make a confidential submission to the Investor nor any Investor Affiliate shall Board of (i) except as provided one Qualified Candidate in Section 5, directly the event either Xxxxxxx Xxxxxxx or indirectly acquire, agree to acquire, or offer to acquire, beneficial ownership of any equity securities of Xxxx X. Xxxxxxxxx is not then on the Company, any warrant or option to purchase such securities, any security convertible into any such securities, or any other right to acquire such securities, other than the Common Stock issued pursuant Board (and has not been replaced by another Director proposed by Capricorn to the CoyCo Transaction Agreement, the Converted Investor Warrant, Common Stock acquired upon exercise of the Converted Investor Warrant and any Common Stock paid as dividends Board) or as otherwise would not increase the Investor’s beneficial ownership of the Company’s Common Stock by greater than 1% on an as-converted basis, (ii) bring two Qualified Candidates in the event both Xxxxxxx Xxxxxxx and Xxxx X. Xxxxxxxxx are not then on the Board (and have not been replaced by two other Directors proposed by Capricorn to the Board), in each case, for consideration by the Board (or its nominating (or equivalent) committee for nomination as a Director;
(f) make or cause to be made any press release or similar public announcement or public communication relating to the way it intends to, or does, vote its Shareholder Shares at any meeting of the shareholders of the Company or in connection with any action by written resolution at or otherwise act in which Voting Securities are entitled to contest the validity of the restrictions set forth in this Section 6, or seek a release of such restrictions, vote (iiiother than as required by law);
(g) deposit Common Stock in any Shareholder Shares into a voting trust or similar subject any Shareholder Shares to any proxy, arrangement or subject any Common Stock to any voting agreement, pooling arrangement or similar arrangement, or grant any proxy agreement with respect to the voting of such Shareholder Shares or other agreement having a similar effect (other than to vote in accordance with an arrangement or agreement solely by and between the Shareholders);
(h) initiate, propose or otherwise solicit shareholders for the approval of any Common Stock to any person not affiliated with the Investor shareholder proposal or Company management; (iv) makesolicit proxies or consents, or in any way participate or engage in, directly or indirectly, any solicitation of proxies to vote, or seek to advise or influence any person with respect to the voting of, any voting securities of the Company or any of Subsidiary of the Company, (v) form, join or in any way participate in a “group” (within the meaning of Section 13(d)(3) of the Exchange Act) with respect to any voting securities of the Company or any Subsidiary of the Company except for any group constituting solely of the Investor and Investor Affiliates, (vi) seek the removal of any directors from the Board or a change in the size or composition of the Board (including, without limitation, voting for any directors not nominated by the Board), except as otherwise provided in Section 2.4(b), (vii) call, request the calling of, or otherwise seek or assist in the calling of a special meeting of the shareholders of the Company, (viii) disclose any intention, plan or arrangement prohibited by, or inconsistent with, the foregoing or (ix) make, or take, any action that would reasonably be expected to cause the Company to make a public announcement regarding any intention of the Investor to take an action that would be prohibited by the foregoing; provided, however, that the foregoing shall not restrict the Investor from complying with applicable law or the ability of the Investor Designees or other directors appointed or elected to the Board from exercising their fiduciary duties or powers as directors.
Section 6.2 Notwithstanding the foregoing, if the Board decides to engage in a process that could give rise to a change of control of the Company, the Company shall invite the Investor to participate in such process on the terms and conditions generally made available to the other participants in such process; provided, however, that in the event the Investor participates in such process, each Investor Designee shall recuse himself or herself from voting on, or otherwise receiving any confidential information regarding, matters in connection with the process; provided, further, however, that, following the termination of the Investor’s participation in any process, the Investor’s right to vote on, and receive confidential information about, the process shall be reinstated. In addition, if requested by the Board, the Investor may submit a confidential private acquisition proposal to the Board and respond to any related inquiries from the Board, provided that any such proposal shall be conditioned on approval of the Board.any
Appears in 2 contracts
Samples: Combination Agreement (CF Industries Holdings, Inc.), Shareholders' Agreement (CF Industries Holdings, Inc.)
Standstill Restrictions. Section 6.1 Until (a) From and after the Closing Date until the later of (x) the time that the Investor’s Ownership Percentage is less than 25% seven (7) year anniversary of the Diluted Common Shares Closing Date and (y) the third three (3) year anniversary of the Original XXX Date date on which the Stockholders shall cease to Beneficially Own Voting Securities representing at least five percent (and5%) of the Voting Securities outstanding at such time (the “Standstill Period”), each Stockholder and the Management Company shall not, and each Stockholder and the Management Company shall cause each of its controlled Affiliates not to, directly or indirectly, alone or in concert with any other Person, except as expressly set forth in this Section 4.1 or Section 5.1(f)(iii):
(i) purchase or cause to be purchased or otherwise acquire or agree to acquire Beneficial Ownership of (A) any Voting Securities in addition to the Stockholder Shares (such Beneficial Ownership in addition to the Stockholder Shares, the “Excess Amount”) (the parties agree that it shall not be a breach of this Section 4.1(a)(i) if the Stockholders, together with their Affiliates, Beneficially Own the Excess Amount solely as a result of (I) share purchases, reverse share splits or other actions taken by the Company that, by reducing the number of shares outstanding (or issuing Voting Securities to the Stockholder Designee pursuant to the Company’s director compensation plan), cause the Stockholders, together with their Affiliates, to Beneficially Own any Excess Amount, or (II) shares purchased, acquired or Beneficially Owned by a Stockholder or any of its controlled Affiliated in the ordinary course of business as a result of the acquisition of any portfolio company or other investment entity that owns any such shares at the time of such acquisition if such additional shares represent five percent (5%) or less of then outstanding Voting Securities or such purchase, acquisition or Beneficial Ownership is approved by the Board; provided, that in any such case such Stockholder shall use its commercially reasonable efforts following consummation of such purchase, acquisition or Beneficial Ownership to dispose of such additional Voting Securities on commercially reasonable terms subject to compliance with applicable securities laws; provided further, that the Beneficial Ownership of the Stockholders, together with their Affiliates, does not further increase thereafter, other than solely as a result of further corporate actions taken by the Company), or (B) any other securities issued by the Company (other than any such securities purchased, acquired or Beneficially Owned by a Stockholder or any of its controlled Affiliated in the ordinary course of business as a result of the acquisition of any portfolio company or other investment entity that owns any such securities at the time of such acquisition if such other securities represent five percent (5%) or less of then outstanding securities of such class, series or type or such purchase, acquisition or Beneficial Ownership is approved by the Board; provided, that in any such case such Stockholder shall use its commercially reasonable efforts following consummation of such purchase, acquisition or Beneficial Ownership to dispose of such other securities on commercially reasonable terms subject to compliance with applicable securities laws);
(ii) propose, offer or participate in any effort to acquire the Company or any of its Subsidiaries or any assets or operations of the Company or any of its Subsidiaries;
(iii) induce or attempt to induce any third party to propose, offer or participate in any effort to acquire Beneficial Ownership of Voting Securities (other than the Stockholder Shares as and to the extent permitted in accordance with Article V);
(iv) – propose, offer or participate in any tender offer, exchange offer, merger, acquisition, share exchange or other business combination or Change of Control transaction involving the Company or any of its subsidiaries, or any recapitalization, restructuring, liquidation, disposition, dissolution or other extraordinary transaction involving the Company, any of its subsidiaries or any material portion of their businesses;
(vii)v) seek to call, only request the call of, or call a special meeting of the stockholders of the Company, or make or seek to 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 in connection with any action by consent in lieu of a meeting, or make a request for so long as a list of the designees of Investor under Section 2.1(a) are seated Company’s stockholders, or seek election to the Board or seek to place a representative on the Board pursuant to Section 2.1 and Section 2.4(b) and (other than as expressly set forth in Section 3.1), or seek the removal of any director from the Board, or otherwise acting alone or in concert with others, seek to control or influence the governance or policies of the Company;
(vi) solicit proxies, designations or written consents of stockholders, or conduct any binding or nonbinding referendum with respect to Voting Securities, or make or in any way participate in any “solicitation” of any “proxy” within the meaning of Rule 14a-1 promulgated by the SEC under the Exchange Act (but without regard to the exclusion set forth in Rule 14a-1(l)(2)(iv) from the definition of “solicitation”) to vote any Voting Securities with respect to any matter, or become a participant in any contested solicitation for the election of directors with respect to the election Company (as such terms are defined or used in the Exchange Act and the rules promulgated thereunder), other than solicitations or acting as a participant in support of the Investor Designees)voting obligations of the Stockholders pursuant to Section 4.3;
(vii) make or issue or cause to be made or issued any public disclosure, neither announcement or statement (including without limitation the Investor nor any Investor Affiliate shall (i) except as provided in Section 5, directly or indirectly acquire, agree to acquire, or offer to acquire, beneficial ownership filing of any equity securities of document or report with the Company, any warrant or option to purchase such securities, any security convertible into any such securities, SEC or any other right governmental agency or any disclosure to acquire such securitiesany journalist, member of the media or securities analyst) (A) in support of any solicitation described in clause (vi) above (other than the Common Stock issued pursuant to the CoyCo Transaction Agreement, the Converted Investor Warrant, Common Stock acquired upon exercise solicitations on behalf of the Converted Investor Warrant and Board), (B) in support of any Common Stock paid as dividends matter described in clause (v) above, (C) concerning any potential matter described in clause (iv) above or as otherwise would not increase (D) negatively or disparagingly commenting about the Investor’s beneficial ownership Company or any of the Company’s Common Stock directors, officers, key employees, businesses, operations or strategic plans or strategic directions;
(viii) form, join, or in any other way participate in, a “partnership, limited partnership, syndicate or other group” within the meaning of Section 13(d)(3) of the Exchange Act with respect to the Voting Securities, or deposit any Voting Securities in a voting trust or similar arrangement, or subject any Voting Securities to any voting agreement or pooling arrangement, or grant any proxy, designation or consent with respect to any Voting Securities (other than to a designated representative of the Company pursuant to a proxy or consent solicitation on behalf of the Board), other than solely with other Stockholders or one or more Affiliates (other than portfolio or operating companies) of a Stockholder with respect to the Stockholder Shares or other Voting Securities acquired in compliance with clause (i) above or to the extent such a group may be deemed to result with the Company or any of its Affiliates as a result of this Agreement (it being understood that the holding by greater than 1% persons or entities of Voting Securities in accounts or through funds not managed or controlled by a Stockholder or any Affiliate of a Stockholder shall not give rise to a violation of this clause (viii) solely by virtue of the fact that such persons or entities, in addition to holding such shares in such manner, are investors in funds and accounts managed by a Stockholder or any of its Affiliates and, in their capacity as such, are or may be deemed to be members of a “group” with the Stockholders within the meaning of Section 13(d)(3) of the Exchange Act with respect to the Voting Securities; provided there does not exist as between such persons or entities, on an as-converted basisthe one hand, and the Stockholders or any of their Affiliates, on the other hand, any agreement, arrangement or understanding with respect to any action that would otherwise be prohibited by this Section 4.1);
(iiix) seek in any manner to obtain any amendment, redemption, termination or waiver of the Rights Agreement, dated as of May 26, 2004, between the Company and Registrar & Transfer Company, as Rights Agent;
(x) publicly disclose, or cause or facilitate the public disclosure (including without limitation the filing of any document or report with the SEC or any other governmental agency or any disclosure to any journalist, member of the media or securities analyst) of, any intent, purpose, plan or proposal to obtain any waiver, consent under, or amendment of, any of the provisions of Section 4.1, 4.2 or 4.3, or otherwise (A) seek in any manner to obtain any waiver, consent under, or amendment of, any provision of this Agreement or (B) bring any action or otherwise act to contest the validity or enforceability of the restrictions set forth in this Section 64.1, 4.2 or 4.3 or seek a release of such restrictionsfrom the restrictions or obligations contained in Section 4.1, 4.2 or 4.3; or
(iiixi) deposit Common Stock in a voting trust enter into any discussions, negotiations, agreements or similar arrangement understandings with any person or subject any Common Stock entity with respect to any voting agreement, pooling arrangement or similar arrangementthe foregoing, or grant advise, assist, encourage, support, provide financing to or seek to persuade others to take any proxy action with respect to any Common Stock to any person not affiliated with of the Investor or Company management; (iv) makeforegoing, or act in any way participate concert with others or engage in, directly or indirectly, any solicitation as part of proxies to vote, or seek to advise or influence any person with respect to the voting of, any voting securities of the Company or any of Subsidiary of the Company, (v) form, join or in any way participate in a “group” group (within the meaning of Section 13(d)(3) of the Exchange Act) with respect to any voting securities of the Company or any Subsidiary of the Company except for any group constituting solely of the Investor and Investor Affiliates, (vi) seek the removal of any directors from the Board or a change in the size or composition of the Board (including, without limitation, voting for any directors not nominated by the Board), except as otherwise provided in Section 2.4(b), (vii) call, request the calling of, or otherwise seek or assist in the calling of a special meeting of the shareholders of the Company, (viii) disclose any intention, plan or arrangement prohibited by, or inconsistent with, the foregoing or (ix) make, or take, any action that would reasonably be expected to cause the Company to make a public announcement regarding any intention of the Investor to take an action that would be prohibited by the foregoing; provided, however, that the foregoing shall not restrict the Investor from complying with applicable law or the ability of the Investor Designees or other directors appointed or elected to the Board from exercising their fiduciary duties or powers as directors.
Section 6.2 Notwithstanding the foregoing, if the Board decides to engage in a process that could give rise to a change of control of the Company, the Company shall invite the Investor to participate in such process on the terms and conditions generally made available to the other participants in such process; provided, however, that in the event the Investor participates in such process, each Investor Designee shall recuse himself or herself from voting on, or otherwise receiving any confidential information regarding, matters in connection with the process; provided, further, however, that, following the termination of the Investor’s participation in any process, the Investor’s right to vote on, and receive confidential information about, the process shall be reinstated. In addition, if requested by the Board, the Investor may submit a confidential private acquisition proposal to the Board and respond to any related inquiries from the Board, provided that any such proposal shall be conditioned on approval of the Board.
Appears in 2 contracts
Samples: Stockholders Agreement (Avista Capital Partners GP, LLC), Stockholders Agreement (Angiodynamics Inc)
Standstill Restrictions. Section 6.1 Until (a) From and after the date of this Agreement until the later of (i) the date that is one (1) year after the date of this Agreement and (ii) 30 days following the date that the Investors are no longer entitled to select a Board Observer including as a result of the Investors irrevocably waiving their rights to select a Board Observer pursuant to this Agreement (the “Standstill Period”), without the prior written consent of the Company, Investors and their respective Controlled Affiliates shall not (and any Person acting on behalf of or at the direction of any Investor or any such Controlled Affiliates shall not), directly or indirectly:
(i) acquire, or agree or offer to acquire (including through the acquisition of Beneficial Ownership) any Equity Securities of the Company or a material portion of the assets of the Company or its Subsidiaries, or any warrant, option or other direct or indirect right to acquire any such securities or assets; provided, however, that nothing in this Section shall prevent (A) the acquisition of (x) Common Stock pursuant to the time exercise, conversion or redemption of shares of preferred stock or warrants of the Company held by an Investor or its controlled Affiliates as of the date hereof in accordance with their terms or (y) in the event that the Investor’s Ownership Percentage is less than 25Company issues Equity Securities in connection with a capital raising or liability management transaction, voting Common Stock acquired within three (3) months of such capital raising or liability management transaction to the minimum extent necessary to reverse the dilution to an Investor and its controlled Affiliates’ total percentage voting power of the voting Common Stock of the Company resulting from such capital raising or liability management transaction, (B) acquisitions as a result of new funds and accounts coming under management by the Investor Adviser or its Controlled Affiliates in the ordinary course of business and not for the purpose of acquiring Equity Securities of the Company, (C) acquisitions by any broad-based index-based funds controlled by the Investor Adviser (if Equity Securities of the Company are included in the applicable index or benchmark; provided that the Investor Adviser and its Controlled Affiliates do not have discretion over inclusion of such Equity Securities in such index or benchmark) or investing in any broad-based index-based funds or (D) the Investor Adviser and its Controlled Affiliates (including the Investors) collectively and in the aggregate acquiring up to 2% of the Diluted Common Shares issued and (y) the third anniversary outstanding Equity Securities of the Original XXX Date Company (andnot including and in addition to any of the Subject Shares);
(ii) make or submit to the Company or any of its Subsidiaries any proposal for or offer to enter into any merger, business combination, recapitalization, restructuring or other extraordinary transaction involving the Company or any of its Subsidiaries, either publicly or in a manner that would reasonably be expected to require public disclosure by the Company or the Investor Adviser, any Investor or any of their respective Controlled Affiliates (it being understood that the foregoing shall not restrict any Investor or its Controlled Affiliates from tendering shares, receiving consideration or other payment for shares or otherwise participating in any extraordinary transaction, in the case of (iv) – (vii)each case, only for so long as the designees of Investor under Section 2.1(a) are seated on the Board pursuant to Section 2.1 same basis as other stockholders or debtholders of the Company generally);
(iii) engage in, any “solicitation” of “proxies” as such terms are used in the proxy rules of the U.S. Securities and Section 2.4(bExchange Commission (the “SEC”) and other than with respect to the election or removal of directors of the Investor Designees), neither the Investor nor any Investor Affiliate shall (i) except as provided in Section 5, directly or indirectly acquire, agree to acquire, or offer to acquire, beneficial ownership of any equity securities of the Company, any warrant or option to purchase such securities, any security convertible into any such securities, Company or any other right to acquire such securities, other than the Common Stock issued pursuant matter or proposal relating to the CoyCo Transaction Agreement, Company or become a “participant” (as such term is defined in Instruction 3 to Item 4 of Schedule 14A promulgated under the Converted Investor Warrant, Common Stock acquired upon exercise Exchange Act) in any such solicitation of the Converted Investor Warrant and any Common Stock paid as dividends or as otherwise would not increase the Investor’s beneficial ownership of the Company’s Common Stock by greater than 1% on an as-converted basis, (ii) bring any action or otherwise act to contest the validity of the restrictions set forth in this Section 6, or seek a release of such restrictions, (iii) deposit Common Stock in a voting trust or similar arrangement or subject any Common Stock to any voting agreement, pooling arrangement or similar arrangement, or grant any proxy with respect to any Common Stock to any person not affiliated with the Investor or Company management; proxies;
(iv) makefile with the SEC a proxy statement or any supplement thereof or any other soliciting material in respect of the Company or its stockholders that would be required to be filed with the SEC pursuant to Rule 14a-12 or other provisions of the Exchange Act;
(v) (x) nominate or recommend for nomination a person for election to the Board at any Stockholder Meeting at which directors of the Board are to be elected or (y) seek the removal of any member of the Board;
(vi) submit any stockholder proposal for consideration at, or bring any other business before, any Stockholder Meeting;
(vii) initiate or in any way intentionally participate or engage in, directly any “withhold” or indirectly, any solicitation of proxies to vote, or seek to advise or influence any person similar campaign with respect to the voting of, any voting securities of the Company or any of Subsidiary of the Company, Stockholder Meeting;
(vviii) form, join or knowingly act in any way participate in concert with a “group” (within the meaning of Section 13(d)(3) of the Exchange Act) with respect to for the purpose of voting, acquiring, holding, or disposing of, any voting securities Equity Securities of the Company or any Subsidiary (other than solely with controlled Affiliates of the Company except for any group constituting solely of the Investor and Investor Affiliates, Investors);
(viix) call or seek the removal of any directors from the Board to call (publicly or a change in the size or composition of the Board (including, without limitation, voting for any directors not nominated by the Boardotherwise), except as otherwise provided alone or in Section 2.4(b)concert with others, (vii) call, request the calling of, or otherwise seek or assist in the calling of a special meeting of the shareholders stockholders of the Company, (viii) disclose any intention, plan or arrangement prohibited by, initiate or inconsistent with, the foregoing or (ix) make, or take, propose any action by written consent;
(x) enter into any negotiations, agreements or arrangements with any other Persons to take any action that an Investor and its Controlled Affiliates are prohibited from taking pursuant to this Section 4.1; or
(xi) make any request to amend or waive any provision of this Section 4.1(a), in each case publicly or in a manner that would reasonably be expected to cause require the Company or the Investor Adviser, any Investor or any of their respective Controlled Affiliates to make a any public announcement regarding any intention or disclosure of the Investor to take an action that would be prohibited by the foregoingsuch request; provided, however, that the foregoing shall not restrict any request to irrevocably waive the Investor from complying with applicable law Investors’ right to select a Board Observer pursuant to this Agreement.
(b) Notwithstanding anything to the contrary in Section 4.1(a), this Section 4.1 shall not prevent or restrict the ability of an Investor or any of its Controlled Affiliates from making any proposal to the Company or the Board privately, so long as the making or receipt of such proposal would not reasonably be expected to require the Company or the Investor Designees Adviser, any Investor or any of their Controlled Affiliates to make any public disclosure regarding the possibility of a business combination, merger or other directors appointed type of transaction described in Section 4.1(a) unless and until such proposal is approved by the Board. If the Company agrees in writing to waive the material obligations of Exxxxxx or elected its Affiliates from its obligations under Section 4.1 thereof (Standstill Restrictions), the Company will provide a similar and proportionate waiver of the Investors’ obligations under this Section 4.1; provided that the Company will retain all rights and remedies with respect to any breach by an Investor occurring prior to such waiver.
(i) This Section 4.1 shall be inoperative and of no force and effect upon the earliest of: (x) as a nonexclusive remedy for any material breach of Section 3.1 of this Agreement by the Company, upon ten (10) Business Days’ written notice by the Investors to the Board from exercising Company if such breach has not been cured within such notice period, provided that none of the Investors or their fiduciary duties respective Controlled Affiliates are in material breach of this Agreement at the time such notice is given or powers prior to the end of the notice period; (y) any Person or “group” (as directors.
defined in Section 6.2 Notwithstanding 13(d)(3) of the foregoingExchange Act) other than an Investor or any of its Controlled Affiliates, if or any “group” including or consisting of any Investors or any of their Controlled Affiliates (A) entering into an agreement with the Board decides Company to engage in a process that could give rise to a change (1) acquire Beneficial Ownership of control more than 50% of the total voting power of the Equity Securities of the Company, (2) designate members who, in the aggregate, hold a majority of the voting power of the Board, or (3) acquire all or substantially all of the assets of the Company and its Subsidiaries or (B) commencing any tender or exchange offer which, if consummated, would result in the acquisition by any Person of Beneficial Ownership of more than 50% of the total voting power of the Equity Securities of the Company, where the Company files with the SEC a Schedule 14D-9 (or any amendment thereto) that does not recommend that its shareholders reject such tender or exchange offer (other than a “stop, look and listen” communication pursuant to Rule 14d-9(f) promulgated under the Exchange Act in response to the commencement of any tender or exchange offer); and (z) if the Board recommends for approval or adopts any amendment to the certificate of incorporation or bylaws of the Company that would reasonably be expected to impair in any material respect the Company’s ability to comply with the terms of this Agreement upon ten (10) Business Days’ written notice by the Investors to the Company if such noncompliance has not been cured within such notice period;
(ii) if the Company enters into, or publicly announces any plans to enter into, any agreement or understanding with respect to the sale or disposition of all or substantially all of the equity or assets of the Company or any of the Company’s significant subsidiaries (as such term is defined in Rule 405 of the Securities Act) or other extraordinary transaction, nothing in this Section 4.1 shall invite prohibit or restrict the Investors or their respective Affiliates from making any private statements (written or oral) with respect to such sale or disposition; and
(iii) nothing in this Section 4.1 shall be understood to prohibit or otherwise limit the Investors and their Controlled Affiliates from (1) (A) negotiating with third parties, evaluating or trading, directly or indirectly, in any non-convertible indebtedness of the Company or any of its Subsidiaries, Derivative Instruments that can only be settled with cash payments, exchange traded fund, benchmark or other basket of securities which may contain, or may otherwise reflect the performance of, any securities of the Company, (B) selling Equity Securities or exercising rights in accordance with the Registration Rights Agreement or (C) pledging, lending, hypothecating or granting a security interest or lien in any Equity Securities (or any similar transaction), (2) engaging in private communications with the Chairman of the Board, Chief Executive Officer or other senior executive officers or their designees, in each case, only so long as such private communications would not reasonably be expected to require any public disclosure thereof by the Company or the Investor to participate Adviser, any other Investor or any of their controlled Affiliates unless and until any proposal included in such process on the terms and conditions generally made available to the other participants in such process; provided, however, that in the event the Investor participates in such process, each Investor Designee shall recuse himself or herself from voting on, or otherwise receiving any confidential information regarding, matters in connection with the process; provided, further, however, that, following the termination of the Investor’s participation in any process, the Investor’s right to vote on, and receive confidential information about, the process shall be reinstated. In addition, if requested private communications is approved by the Board, (3) making any factual statement to comply with any oral questions, interrogatories, requests for information or documents, subpoenas, civil investigative demand or similar process by any Governmental Entity or pursuant to Law (so long as such process or request did not arise as a result of discretionary acts by the Investor may submit Adviser or any of its Controlled Affiliates), in accordance with Section 4.3(b) or (4) granting any liens or encumbrances on any claims or interests in favor of a confidential private acquisition proposal to bank or broker-dealer or prime broker holding such claims or interests in custody or prime brokerage in the Board and respond to any related inquiries from ordinary course of business, which lien or encumbrance is released upon the Board, provided that any transfer of such proposal shall be conditioned on approval claims or interests in accordance with the terms of the Boardcustody or prime brokerage agreement(s), as applicable or depositing (or withdrawing from deposit) any Equity Securities with a fiduciary or depositary pursuant to a deposit agreement or arrangements (including any prime broker account).
Appears in 1 contract
Standstill Restrictions. Section 6.1 Until From and after the later of Effective Time until the one (x1) the time that the Investor’s Ownership Percentage is less than 25% of the Diluted Common Shares and (y) the third year anniversary of the Original XXX Date (anddate on which the S Shareholders, in the case of aggregate, cease to Beneficially Own Voting Securities representing at least the Ownership Threshold (iv) – (viithe “Standstill Period”), only for so long as each Shareholder agrees that, without the designees of Investor under Section 2.1(a) are seated on the Board pursuant to Section 2.1 and Section 2.4(b) and other than with respect to the election prior written consent of the Investor Designees)Board, neither the Investor nor any Investor Affiliate such Shareholder shall (i) except as provided in Section 5not, directly or indirectly acquireand shall cause each of its and their Affiliates and, agree shall use reasonable endeavours to acquirecause, or offer to acquire, beneficial ownership of any equity securities of the Company, any warrant or option to purchase such securities, any security convertible into any such securities, or any other right to acquire such securities, other than the Common Stock issued pursuant to the CoyCo Transaction Agreement, the Converted Investor Warrant, Common Stock acquired upon exercise of the Converted Investor Warrant its and any Common Stock paid as dividends or as otherwise would their Representatives acting on their behalf not increase the Investor’s beneficial ownership of the Company’s Common Stock by greater than 1% on an as-converted basis, (ii) bring any action or otherwise act to contest the validity of the restrictions set forth in this Section 6, or seek a release of such restrictions, (iii) deposit Common Stock in a voting trust or similar arrangement or subject any Common Stock to any voting agreement, pooling arrangement or similar arrangement, or grant any proxy with respect to any Common Stock to any person not affiliated with the Investor or Company management; (iv) make, or in any way participate or engage into, directly or indirectly, alone or acting together with any solicitation other Person, except as otherwise (A) expressly set forth in this Clause 3.1 or (B) provided in the Combination Agreement and/or the Firewater One Shareholder Agreement:
(a) acquire, offer to acquire or agree to acquire Beneficial Ownership of proxies any Voting Securities that would result in (a) the Shareholders together with the Shareholders’ Affiliates Beneficially Owning Voting Securities in excess of the Ownership Limit or (b) Oxford Beneficially Owning Voting Securities in excess of the amount of Oxford Shares Beneficially Owned by it immediately following the Distribution, as such amount may be reduced from time to votetime as a result of any Transfers by Oxford of Oxford Shares;
(b) acquire, offer to acquire or seek agree to advise acquire the Company or influence any person with respect to the voting of, any voting securities assets of the Company or any of Subsidiary its Subsidiaries that are material to the operations, financial condition or prospects of the CompanyCompany and its Subsidiaries, taken as a whole (vit being understood that this sub-clause (b) formshall not apply to any transaction in the ordinary course of business between the Company and its Affiliates and Oxford and its Affiliates);
(c) induce or attempt to induce any third party to propose or offer to acquire Beneficial Ownership of Voting Securities (other than Shareholder Shares as and to the extent permitted in accordance with Clause 4);
(d) initiate or make a proposal for any scheme of arrangement, join merger, tender, takeover or exchange offer, business combination, reorganisation, restructuring, recapitalisation or other extraordinary transaction with respect to the Company and any of its Subsidiaries;
(e) seek the nomination, appointment or removal of any Directors or seek a change in any way participate in a “group” (within the meaning of Section 13(d)(3) composition or size of the Exchange ActBoard (other than (i) with respect to any voting securities the nomination, appointment or removal of its Shareholder Designees, if any, in the case of the Company or any Subsidiary of the Company except for any group constituting solely of the Investor and Investor Affiliates, (vi) seek the removal of any directors from the Board or a change in the size or composition of the Board (including, without limitation, voting for any directors not nominated by the Board), except as otherwise provided in Section 2.4(b), (vii) call, request the calling ofS Shareholders, or otherwise seek or assist in the calling of a special meeting of the shareholders of the Company, (viiiii) disclose any intention, plan or arrangement prohibited by, or inconsistent with, the foregoing or (ix) make, or take, any action that would reasonably be expected to cause the Company to make a public announcement regarding any intention of the Investor to take an action that would be prohibited by the foregoing; provided, however, that the foregoing shall not restrict the Investor from complying with applicable law or the ability of the Investor Designees or other directors appointed or elected to the Board from exercising their fiduciary duties or powers as directors.
Section 6.2 Notwithstanding the foregoing, if the Board decides to engage in a process that could give rise to a change of control of the Company, the Company shall invite the Investor to participate in such process on the terms and conditions generally made available to the other participants in such process; provided, however, that in the event the Investor participates in such process, each Investor Designee shall recuse himself or herself from voting on, or otherwise receiving any confidential information regarding, matters in connection with the process; provided, further, however, that, following the termination of the Investor’s participation in any process, the Investor’s right to vote on, and receive confidential information about, the process shall be reinstated. In addition, if requested by the Board, the Investor may submit a confidential private acquisition proposal to the Board and respond to any related inquiries from the Board, provided that any such proposal shall be conditioned on approval of the Board.in accordance with Clause 3.5);
Appears in 1 contract
Samples: Combination Agreement (CF Industries Holdings, Inc.)
Standstill Restrictions. Section 6.1 Until (a) Without the later of (x) the time that the Investor’s Ownership Percentage is less than 25% prior written consent of the Diluted Common Shares and (y) the third anniversary of the Original XXX Date (andCompany, in the case of (iv) – (vii), only for so long as the designees of Investor under Section 2.1(a) are seated on the Board pursuant to Section 2.1 and Section 2.4(b) and other than with respect to the election of the Investor Designees)shall not, neither the Investor nor and shall not permit any Investor Affiliate shall (i) except as provided in Section 5of its subsidiaries to, directly or indirectly acquireindirectly, agree to authorize or make a tender or exchange offer for, or purchase or otherwise acquire, or offer agree to acquireacquire or obtain, directly or indirectly, beneficial ownership of any equity securities Voting Stock, if the effect of such acquisition would be to increase the number of shares of Voting Stock then beneficially owned by the Investor and its subsidiaries to an amount representing more than forty percent (40%) of the Company, any warrant Total Voting Power; provided that (i) the issuance or option to purchase such securities, any security convertible into any such securities, or any other right to acquire such securities, other than the Common Stock issued -------- ownership of New Securities pursuant to the CoyCo Transaction Agreement, the Converted Investor Warrant, Common Stock acquired upon exercise of the Converted Investor Warrant and any Common Stock paid as dividends or as otherwise would not increase the Investor’s beneficial ownership of the Company’s Common Stock by greater than 1% on an as-converted basisSection 4.1, (ii) bring any action issuance of Common Stock or otherwise act Preferred Stock pursuant to contest the validity of the restrictions set forth in this Section 6, or seek a release of such restrictionsAsset Purchase Agreement, (iii) deposit issuance or ownership of the Shares or shares of Common Stock or Preferred Stock issuable or issued upon conversion of the Shares which constitute Preferred Stock in a voting trust or similar arrangement or subject any Common Stock to any voting agreement, pooling arrangement or similar arrangement, or grant any proxy with respect to any Common Stock to any person not affiliated accordance with the Investor or Company management; terms of the Certificate of Designation, and (iv) makethe ownership or exercise of any Rights in accordance with the terms hereof, or shall in no event be prohibited by the foregoing limitation; provided, further -------- ------- that until the Investor's percentage of the Total Voting decreases below forty percent (40%) of the Total Voting Power, except as set forth in (i) through (iv) above, the Investor shall not, and shall not permit any way participate or engage inof its subsidiaries to, directly or indirectly, any solicitation of proxies to voteauthorize or make a tender or exchange offer for, or seek purchase or otherwise acquire, or agree to advise acquire or influence obtain, directly or indirectly, beneficial ownership of any person with respect Voting Stock.
(b) Notwithstanding the above, the Investor shall not be obligated to dispose of any shares of Voting Stock if the voting of, any voting securities aggregate percentage ownership of the Investor is increased as a result of a Recapitalization of the Company or any a repurchase of Subsidiary of the Company, (v) form, join or in any way participate in a “group” (within the meaning of Section 13(d)(3) of the Exchange Act) with respect to any voting securities of by the Company or any Subsidiary other action taken by the Company or its subsidiaries. If the Company repurchases any of its Voting Stock and such repurchases result in the Investor owning more than the percentage of the Voting Stock of the Company except for any group constituting solely allowed under Section 5.1(a) at the effective time of the Investor and Investor Affiliates, (vi) seek the removal of any directors from the Board or a change in the size or composition of the Board (including, without limitation, voting for any directors not nominated by the Board), except as otherwise provided in Section 2.4(b), (vii) call, request the calling of, or otherwise seek or assist in the calling of a special meeting of the shareholders of the Company, (viii) disclose any intention, plan or arrangement prohibited by, or inconsistent with, the foregoing or (ix) make, or take, any action that would reasonably be expected to cause the Company to make a public announcement regarding any intention of the Investor to take an action that would be prohibited by the foregoing; provided, however, that the foregoing shall not restrict the Investor from complying with applicable law or the ability of the Investor Designees or other directors appointed or elected to the Board from exercising their fiduciary duties or powers as directors.
Section 6.2 Notwithstanding the foregoing, if the Board decides to engage in a process that could give rise to a change of control of the Company, the Company shall invite the Investor to participate in such process on the terms and conditions generally made available to the other participants in such process; provided, however, that in the event the Investor participates in such process, each Investor Designee shall recuse himself or herself from voting on, or otherwise receiving any confidential information regarding, matters in connection with the process; provided, further, however, that, following the termination of the Investor’s participation in any process, the Investor’s right to vote on, and receive confidential information about, the process shall be reinstated. In addition, if requested by the Boardrepurchases, the Investor may submit a confidential private acquisition proposal shall not be obligated to the Board and respond to any related inquiries from the Board, provided that any such proposal shall be conditioned on approval divest itself of the BoardVoting Stock to fall within the foregoing percentage limitation, but shall not acquire any additional Voting Stock unless such acquisition would otherwise be Permitted under this Section 5.
Appears in 1 contract
Standstill Restrictions. Section 6.1 Until (a) From and after the Closing Date until the later of (x) the time that the Investor’s Ownership Percentage is less than 25% seven (7) year anniversary of the Diluted Common Shares Closing Date and (y) the third three (3) year anniversary of the Original XXX Date date on which the Stockholders shall cease to Beneficially Own Voting Securities representing at least five percent (and5%) of the Voting Securities outstanding at such time (the “Standstill Period”), each Stockholder and the Management Company shall not, and each Stockholder and the Management Company shall cause each of its controlled Affiliates not to, directly or indirectly, alone or in concert with any other Person, except as expressly set forth in this Section 4.1 or Section 5.1(f)(iii):
(i) purchase or cause to be purchased or otherwise acquire or agree to acquire Beneficial Ownership of (A) any Voting Securities in addition to the Stockholder Shares (such Beneficial Ownership in addition to the Stockholder Shares, the “Excess Amount”) (the parties agree that it shall not be a breach of this Section 4.1(a)(i) if the Stockholders, together with their Affiliates, Beneficially Own the Excess Amount solely as a result of (I) share purchases, reverse share splits or other actions taken by the Company that, by reducing the number of shares outstanding (or issuing Voting Securities to the Stockholder Designee pursuant to the Company’s director compensation plan), cause the Stockholders, together with their Affiliates, to Beneficially Own any Excess Amount, or (II) shares purchased, acquired or Beneficially Owned by a Stockholder or any of its controlled Affiliated in the ordinary course of business as a result of the acquisition of any portfolio company or other investment entity that owns any such shares at the time of such acquisition if such additional shares represent five percent (5%) or less of then outstanding Voting Securities or such purchase, acquisition or Beneficial Ownership is approved by the Board; provided, that in any such case such Stockholder shall use its commercially reasonable efforts following consummation of such purchase, acquisition or Beneficial Ownership to dispose of such additional Voting Securities on commercially reasonable terms subject to compliance with applicable securities laws; provided further, that the Beneficial Ownership of the Stockholders, together with their Affiliates, does not further increase thereafter, other than solely as a result of further corporate actions taken by the Company), or (B) any other securities issued by the Company (other than any such securities purchased, acquired or Beneficially Owned by a Stockholder or any of its controlled Affiliates in the ordinary course of business as a result of the acquisition of any portfolio company or other investment entity that owns any such securities at the time of such acquisition if such other securities represent five percent (5%) or less of then outstanding securities of such class, series or type or such purchase, acquisition or Beneficial Ownership is approved by the Board; provided, that in any such case such Stockholder shall use its commercially reasonable efforts following consummation of such purchase, acquisition or Beneficial Ownership to dispose of such other securities on commercially reasonable terms subject to compliance with applicable securities laws);
(ii) propose, offer or participate in any effort to acquire the Company or any of its Subsidiaries or any assets or operations of the Company or any of its Subsidiaries;
(iii) induce or attempt to induce any third party to propose, offer or participate in any effort to acquire Beneficial Ownership of Voting Securities (other than the Stockholder Shares as and to the extent permitted in accordance with Article V);
(iv) – propose, offer or participate in any tender offer, exchange offer, merger, acquisition, share exchange or other business combination or Change of Control transaction involving the Company or any of its subsidiaries, or any recapitalization, restructuring, liquidation, disposition, dissolution or other extraordinary transaction involving the Company, any of its subsidiaries or any material portion of their businesses;
(vii)v) seek to call, only request the call of, or call a special meeting of the stockholders of the Company, or make or seek to 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 in connection with any action by consent in lieu of a meeting, or make a request for so long as a list of the designees of Investor under Section 2.1(a) are seated Company’s stockholders, or seek election to the Board or seek to place a representative on the Board pursuant to Section 2.1 and Section 2.4(b) and (other than as expressly set forth in Section 3.1), or seek the removal of any director from the Board, or otherwise acting alone or in concert with others, seek to control or influence the governance or policies of the Company;
(vi) solicit proxies, designations or written consents of stockholders, or conduct any binding or nonbinding referendum with respect to Voting Securities, or make or in any way participate in any “solicitation” of any “proxy” within the meaning of Rule 14a-1 promulgated by the SEC under the Exchange Act (but without regard to the exclusion set forth in Rule 14a-1(l)(2)(iv) from the definition of “solicitation”) to vote any Voting Securities with respect to any matter, or become a participant in any contested solicitation for the election of directors with respect to the election Company (as such terms are defined or used in the Exchange Act and the rules promulgated thereunder), other than solicitations or acting as a participant in support of the Investor Designees)voting obligations of the Stockholders pursuant to Section 4.3;
(vii) make or issue or cause to be made or issued any public disclosure, neither announcement or statement (including without limitation the Investor nor any Investor Affiliate shall (i) except as provided in Section 5, directly or indirectly acquire, agree to acquire, or offer to acquire, beneficial ownership filing of any equity securities of document or report with the Company, any warrant or option to purchase such securities, any security convertible into any such securities, SEC or any other right governmental agency or any disclosure to acquire such securitiesany journalist, member of the media or securities analyst) (A) in support of any solicitation described in clause (vi) above (other than the Common Stock issued pursuant to the CoyCo Transaction Agreement, the Converted Investor Warrant, Common Stock acquired upon exercise solicitations on behalf of the Converted Investor Warrant and Board), (B) in support of any Common Stock paid as dividends matter described in clause (v) above, (C) concerning any potential matter described in clause (iv) above or as otherwise would not increase (D) negatively or disparagingly commenting about the Investor’s beneficial ownership Company or any of the Company’s Common Stock directors, officers, key employees, businesses, operations or strategic plans or strategic directions;
(viii) form, join, or in any other way participate in, a “partnership, limited partnership, syndicate or other group” within the meaning of Section 13(d)(3) of the Exchange Act with respect to the Voting Securities, or deposit any Voting Securities in a voting trust or similar arrangement, or subject any Voting Securities to any voting agreement or pooling arrangement, or grant any proxy, designation or consent with respect to any Voting Securities (other than to a designated representative of the Company pursuant to a proxy or consent solicitation on behalf of the Board), other than solely with other Stockholders or one or more Affiliates (other than portfolio or operating companies) of a Stockholder with respect to the Stockholder Shares or other Voting Securities acquired in compliance with clause (i) above or to the extent such a group may be deemed to result with the Company or any of its Affiliates as a result of this Agreement (it being understood that the holding by greater than 1% persons or entities of Voting Securities in accounts or through funds not managed or controlled by a Stockholder or any Affiliate of a Stockholder shall not give rise to a violation of this clause (viii) solely by virtue of the fact that such persons or entities, in addition to holding such shares in such manner, are investors in funds and accounts managed by a Stockholder or any of its Affiliates and, in their capacity as such, are or may be deemed to be members of a “group” with the Stockholders within the meaning of Section 13(d)(3) of the Exchange Act with respect to the Voting Securities; provided there does not exist as between such persons or entities, on an as-converted basisthe one hand, and the Stockholders or any of their Affiliates, on the other hand, any agreement, arrangement or understanding with respect to any action that would otherwise be prohibited by this Section 4.1);
(iiix) seek in any manner to obtain any amendment, redemption, termination or waiver of the Rights Agreement, dated as of May 26, 2004, between the Company and Registrar & Transfer Company, as Rights Agent;
(x) publicly disclose, or cause or facilitate the public disclosure (including without limitation the filing of any document or report with the SEC or any other governmental agency or any disclosure to any journalist, member of the media or securities analyst) of, any intent, purpose, plan or proposal to obtain any waiver, consent under, or amendment of, any of the provisions of Section 4.1, 4.2 or 4.3, or otherwise (A) seek in any manner to obtain any waiver, consent under, or amendment of, any provision of this Agreement or (B) bring any action or otherwise act to contest the validity or enforceability of the restrictions set forth in this Section 64.1, 4.2 or 4.3 or seek a release of such restrictionsfrom the restrictions or obligations contained in Section 4.1, 4.2 or 4.3; or
(iiixi) deposit Common Stock in a voting trust enter into any discussions, negotiations, agreements or similar arrangement understandings with any person or subject any Common Stock entity with respect to any voting agreement, pooling arrangement or similar arrangementthe foregoing, or grant advise, assist, encourage, support, provide financing to or seek to persuade others to take any proxy action with respect to any Common Stock to any person not affiliated with of the Investor or Company management; (iv) makeforegoing, or act in any way participate concert with others or engage in, directly or indirectly, any solicitation as part of proxies to vote, or seek to advise or influence any person with respect to the voting of, any voting securities of the Company or any of Subsidiary of the Company, (v) form, join or in any way participate in a “group” group (within the meaning of Section 13(d)(3) of the Exchange Act) with respect to any voting securities of the Company or any Subsidiary of the Company except for any group constituting solely of the Investor and Investor Affiliates, (vi) seek the removal of any directors from the Board or a change in the size or composition of the Board (including, without limitation, voting for any directors not nominated by the Board), except as otherwise provided in Section 2.4(b), (vii) call, request the calling of, or otherwise seek or assist in the calling of a special meeting of the shareholders of the Company, (viii) disclose any intention, plan or arrangement prohibited by, or inconsistent with, the foregoing or (ix) make, or take, any action that would reasonably be expected to cause the Company to make a public announcement regarding any intention of the Investor to take an action that would be prohibited by the foregoing; provided, however, that the foregoing shall not restrict the Investor from complying with applicable law or the ability of the Investor Designees or other directors appointed or elected to the Board from exercising their fiduciary duties or powers as directors.
Section 6.2 Notwithstanding the foregoing, if the Board decides to engage in a process that could give rise to a change of control of the Company, the Company shall invite the Investor to participate in such process on the terms and conditions generally made available to the other participants in such process; provided, however, that in the event the Investor participates in such process, each Investor Designee shall recuse himself or herself from voting on, or otherwise receiving any confidential information regarding, matters in connection with the process; provided, further, however, that, following the termination of the Investor’s participation in any process, the Investor’s right to vote on, and receive confidential information about, the process shall be reinstated. In addition, if requested by the Board, the Investor may submit a confidential private acquisition proposal to the Board and respond to any related inquiries from the Board, provided that any such proposal shall be conditioned on approval of the Board.
Appears in 1 contract
Standstill Restrictions. Section 6.1 Until From and after the later of Effective Time until the one (x1) the time that the Investor’s Ownership Percentage is less than 25% of the Diluted Common Shares and (y) the third year anniversary of the Original XXX Date date on which the S Shareholders, in the aggregate, cease to Beneficially Own Voting Securities representing at least the Ownership Threshold (the “Standstill Period”), each Shareholder agrees that, without the prior written consent of the Board, such Shareholder shall not, and shall cause each of its and their Affiliates and, shall use reasonable endeavours to cause, its and their Representatives acting on their behalf not to, directly or indirectly, alone or acting together with any other Person, except as otherwise (A) expressly set forth in this Clause 3.1 or (B) provided in the Combination Agreement and/or the Firewater One Shareholder Agreement:
(a) acquire, offer to acquire or agree to acquire Beneficial Ownership of any Voting Securities that would result in (a) the Shareholders together with the Shareholders’ Affiliates Beneficially Owning Voting Securities in excess of the Ownership Limit or (b) Oxford Beneficially Owning Voting Securities in excess of the amount of Oxford Shares Beneficially Owned by it immediately following the Distribution, as such amount may be reduced from time to time as a result of any Transfers by Oxford of Oxford Shares;
(b) acquire, offer to acquire or agree to acquire the Company or any assets of the Company or any of its Subsidiaries that are material to the operations, financial condition or prospects of the Company and its Subsidiaries, taken as a whole (it being understood that this sub-clause (b) shall not apply to any transaction in the ordinary course of business between the Company and its Affiliates and Oxford and its Affiliates);
(c) induce or attempt to induce any third party to propose or offer to acquire Beneficial Ownership of Voting Securities (other than Shareholder Shares as and to the extent permitted in accordance with Clause 4);
(d) initiate or make a proposal for any scheme of arrangement, merger, tender, takeover or exchange offer, business combination, reorganisation, restructuring, recapitalisation or other extraordinary transaction with respect to the Company and any of its Subsidiaries;
(e) seek the nomination, appointment or removal of any Directors or seek a change in the composition or size of the Board (other than (i) with respect to the nomination, appointment or removal of its Shareholder Designees, if any, in the case of the S Shareholders, or (ivii) – to vote in accordance with Clause 3.5);
(vii)f) make or cause to be made any press release or similar public announcement or public communication relating to the way it intends to, only for so long as or does, vote its Shareholder Shares at any meeting of the designees shareholders of Investor under Section 2.1(a) the Company or in connection with any action by written resolution at or in which Voting Securities are seated on the Board pursuant entitled to Section 2.1 and Section 2.4(b) and vote (other than as required by law);
(g) deposit any Shareholder Shares into a voting trust or subject any Shareholder Shares to any proxy, arrangement or agreement with respect to the election voting of the Investor Designees), neither the Investor nor any Investor Affiliate shall such Shareholder Shares or other agreement having a similar effect (other than (i) except as provided to vote in Section 5, directly or indirectly acquire, agree to acquireaccordance with Clause 3.5, or offer to acquire, beneficial ownership of any equity securities of the Company, any warrant or option to purchase such securities, any security convertible into any such securities, or any other right to acquire such securities, other than the Common Stock issued pursuant to the CoyCo Transaction Agreement, the Converted Investor Warrant, Common Stock acquired upon exercise of the Converted Investor Warrant and any Common Stock paid as dividends or as otherwise would not increase the Investor’s beneficial ownership of the Company’s Common Stock by greater than 1% on an as-converted basis, (ii) bring any action an arrangement or agreement solely by and between the Shareholders;
(h) initiate, propose or otherwise act to contest solicit shareholders for the validity approval of the restrictions set forth in this Section 6, any shareholder proposal or seek a release of such restrictions, (iii) deposit Common Stock in a voting trust solicit proxies or similar arrangement or subject any Common Stock to any voting agreement, pooling arrangement or similar arrangement, or grant any proxy with respect to any Common Stock to any person not affiliated with the Investor or Company management; (iv) makeconsents, or in any way participate or engage in, directly or indirectly, any solicitation “solicitation” of proxies “proxies” to vote, vote or seek to advise or influence any person with respect to the voting of, any voting securities of the Company or any of Subsidiary of the Company, (v) form, join or in any way participate become a “participant” in a “groupsolicitation” (within the meaning of Section 13(d)(3) of as such terms are defined in Regulation 14A under the Exchange Act, as in effect on the date of this Agreement, whether or not such Regulation is applicable to the Company) with respect to any voting securities of the Company or any Subsidiary of the Company except for any group constituting solely of the Investor and Investor Affiliates, Voting Securities (vi) seek the removal of any directors from the Board or a change in the size or composition of the Board (including, without limitation, voting for any directors not nominated by the Board), except as otherwise provided in Section 2.4(b), (vii) call, request the calling of, or otherwise seek or assist in the calling of a special meeting of the shareholders of the Company, (viii) disclose any intention, plan or arrangement prohibited by, or inconsistent with, the foregoing or (ix) make, or take, any action that would reasonably be expected to cause the Company to make a public announcement regarding any intention of the Investor to take an action that would be prohibited by the foregoing; provided, however, that the foregoing shall not restrict the Investor from complying with applicable law or the ability of the Investor Designees or other directors appointed or elected to the Board from exercising their fiduciary duties or powers as directors.
Section 6.2 Notwithstanding the foregoing, if the Board decides to engage in a process that could give rise to a change of control of the Company, the Company shall invite the Investor to participate in such process on the terms and conditions generally made available to the other participants in such process; provided, however, that in the event the Investor participates in such process, each Investor Designee shall recuse himself or herself from voting on, or otherwise receiving any confidential information regarding, matters in connection with the process; provided, further, however, that, following the termination of the Investor’s participation in any process, the Investor’s right than to vote on, and receive confidential information about, the process shall be reinstated. In addition, if requested by the Board, the Investor may submit a confidential private acquisition proposal to the Board and respond to any related inquiries from the Board, provided that any such proposal shall be conditioned on approval of the Board.in accordance with Clause 3.5);
Appears in 1 contract
Samples: Shareholder Agreement (CF Industries Holdings, Inc.)
Standstill Restrictions. Section 6.1 Until (a) From and after the date of this Agreement until the later of (i) the date that is one (1) year after the date of this Agreement and (ii) 30 days following the date that is the later to occur of Exxxxxx no longer having (x) an Investor Designee serving on the time that the Investor’s Ownership Percentage is less than 25% of the Diluted Common Shares and Board or (y) a right to select an Investor Designee including as a result of Exxxxxx irrevocably waiving its rights to select Investor Designees pursuant to this Agreement (the third anniversary “Standstill Period”), without the prior written consent of the Original XXX Date Company, Exxxxxx and its controlled Affiliates shall not (andand any person acting on behalf of or at the direction of Exxxxxx or any such controlled Affiliates shall not), directly or indirectly:
(i) acquire, or agree or offer to acquire (including through the acquisition of Beneficial Ownership) any Equity Securities of the Company or a material portion of the assets of the Company or its Subsidiaries, or any warrant, option or other direct or indirect right to acquire any such securities or assets; provided, however, that nothing in this Section 4.1(a)(i) shall prevent the acquisition of (x) Common Stock pursuant to the exercise, conversion or redemption of shares of preferred stock or warrants of the Company held by Exxxxxx or its controlled Affiliates as of the date hereof in accordance with their terms or (y) in the event that the Company issues Equity Securities in connection with a capital raising or liability management transaction, voting Common Stock acquired within three (3) months of such capital raising or liability management transaction to the minimum extent necessary to reverse the dilution to Exxxxxx and its controlled Affiliates’ total percentage voting power of the voting Common Stock of the Company resulting from such capital raising or liability management transaction;
(ii) make or submit to the Company or any of its Subsidiaries any proposal for or offer to enter into any merger, business combination, recapitalization, restructuring or other extraordinary transaction involving the Company or any of its Subsidiaries, either publicly or in a manner that would reasonably be expected to require public disclosure by the Company or Exxxxxx or its controlled Affiliates (it being understood that the foregoing shall not restrict Exxxxxx or its controlled Affiliates from tendering shares, receiving consideration or other payment for shares or otherwise participating in any extraordinary transaction, in the case of (iv) – (vii)each case, only for so long as the designees of Investor under Section 2.1(a) are seated on the Board pursuant to Section 2.1 same basis as other stockholders of the Company generally);
(iii) engage in, any “solicitation” of “proxies” as such terms are used in the proxy rules of the U.S. Securities and Section 2.4(bExchange Commission (the “SEC”) and other than with respect to the election or removal of directors of the Investor Designees), neither the Investor nor any Investor Affiliate shall (i) except as provided in Section 5, directly or indirectly acquire, agree to acquire, or offer to acquire, beneficial ownership of any equity securities of the Company, any warrant or option to purchase such securities, any security convertible into any such securities, Company or any other right to acquire such securities, other than the Common Stock issued pursuant matter or proposal relating to the CoyCo Transaction Agreement, Company or become a “participant” (as such term is defined in Instruction 3 to Item 4 of Schedule 14A promulgated under the Converted Investor Warrant, Common Stock acquired upon exercise Exchange Act) in any such solicitation of the Converted Investor Warrant and any Common Stock paid as dividends or as otherwise would not increase the Investor’s beneficial ownership of the Company’s Common Stock by greater than 1% on an as-converted basis, (ii) bring any action or otherwise act to contest the validity of the restrictions set forth in this Section 6, or seek a release of such restrictions, (iii) deposit Common Stock in a voting trust or similar arrangement or subject any Common Stock to any voting agreement, pooling arrangement or similar arrangement, or grant any proxy with respect to any Common Stock to any person not affiliated with the Investor or Company management; proxies;
(iv) makefile with the SEC a proxy statement or any supplement thereof or any other soliciting material in respect of the Company or its stockholders that would be required to be filed with the SEC pursuant to Rule 14a-12 or other provisions of the Exchange Act;
(v) (x) nominate or recommend for nomination a person for election to the Board at any Stockholder Meeting at which directors of the Board are to be elected or (y) seek the removal of any member of the Board, in each case other than as expressly permitted pursuant to Section 3.1; provided that nothing in this clause (v) shall prevent Exxxxxx or its controlled Affiliates from taking actions in accordance with Section 3.1, as applicable;
(vi) submit any stockholder proposal for consideration at, or bring any other business before, any Stockholder Meeting;
(vii) initiate or in any way intentionally participate or engage in, directly any “withhold” or indirectly, any solicitation of proxies to vote, or seek to advise or influence any person similar campaign with respect to the voting of, any voting securities of the Company or any of Subsidiary of the Company, Stockholder Meeting;
(vviii) form, join or act in any way participate in concert with a “group” (within the meaning of Section 13(d)(3) of the Exchange Act) with respect to for the purpose of voting, acquiring, holding, or disposing of, any voting securities Equity Securities of the Company (other than solely with controlled Affiliates of Exxxxxx);
(ix) call or any Subsidiary of the Company except for any group constituting solely of the Investor and Investor Affiliates, seek to call (vi) seek the removal of any directors from the Board publicly or a change in the size or composition of the Board (including, without limitation, voting for any directors not nominated by the Boardotherwise), except as otherwise provided alone or in Section 2.4(b)concert with others, (vii) call, request the calling of, or otherwise seek or assist in the calling of a special meeting of the shareholders stockholders of the Company, (viii) disclose any intention, plan or arrangement prohibited by, initiate or inconsistent with, the foregoing or (ix) make, or take, propose any action by written consent;
(x) enter into any negotiations, agreements or arrangements with any other persons to take any action that Exxxxxx and its controlled Affiliates are prohibited from taking pursuant to this Section 4.1; or
(xi) make any request to amend or waive any provision of this Section 4.1(a), in each case publicly or in a manner that would reasonably be expected to cause require the Company or Exxxxxx or any of its controlled Affiliates to make any public announcement or disclosure of such request.
(b) Notwithstanding anything to the contrary in Section 4.1(a), this Section 4.1 shall not prevent or restrict the ability of Exxxxxx or any of its controlled Affiliates from making any proposal to the Company or the Board privately, so long as the making or receipt of such proposal would not reasonably be expected to require the Company, Exxxxxx or any of its controlled Affiliates to make any public disclosure regarding the possibility of a business combination, merger or other type of transaction described in Section 4.1(a), and further:
(i) this Section 4.1 shall be inoperative and of no force and effect upon the earliest of: (x) as a nonexclusive remedy for any material breach of Section 3.1 of this Agreement by the Company, upon ten (10) Business Days’ written notice by Exxxxxx to the Company if such breach has not been cured within such notice period, provided that none of Exxxxxx or its controlled Affiliates are in material breach of this Agreement at the time such notice is given or prior to the end of the notice period; (y) any Person or “group” (as defined in Section 13(d)(3) of the Exchange Act) other than Exxxxxx or any of its Affiliates, or any “group” including or consisting of Exxxxxx or any of its Affiliates (A) entering into an agreement with the Company to make a public announcement regarding any intention (1) acquire Beneficial Ownership of more than 50% of the Investor to take an action that would be prohibited by the foregoing; provided, however, that the foregoing shall not restrict the Investor from complying with applicable law or the ability total voting power of the Investor Designees or other directors appointed or elected to the Board from exercising their fiduciary duties or powers as directors.
Section 6.2 Notwithstanding the foregoing, if the Board decides to engage in a process that could give rise to a change of control Equity Securities of the Company, the Company shall invite the Investor to participate in such process on the terms and conditions generally made available to the other participants in such process; provided(2) designate members who, however, that in the event the Investor participates in such processaggregate, each Investor Designee shall recuse himself or herself from voting on, or otherwise receiving any confidential information regarding, matters in connection with the process; provided, further, however, that, following the termination hold a majority of the Investor’s participation in any process, the Investor’s right to vote on, and receive confidential information about, the process shall be reinstated. In addition, if requested by voting power of the Board, or (3) acquire all or substantially all of the Investor may submit assets of the Company and its subsidiaries or (B) commencing any tender or exchange offer (by any Person other than Exxxxxx or its controlled Affiliates) which, if consummated, would result in the acquisition by any Person of Beneficial Ownership of more than 50% of the total voting power of the Equity Securities of the Company, where the Company files with the SEC a confidential private acquisition proposal Schedule 14D-9 (or any amendment thereto) that does not recommend that its shareholders reject such tender or exchange offer (other than a “stop, look and listen” communication pursuant to Rule 14d-9(f) promulgated under the Exchange Act in response to the commencement of any tender or exchange offer); and (z) if the Board recommends for approval or adopts any amendment to the certificate of incorporation or bylaws of the Company that would reasonably be expected to impair in any material respect the Company’s ability to comply with the terms of this Agreement upon ten (10) Business Days’ written notice by Exxxxxx to the Company if such noncompliance has not been cured within such notice period; provided that this clause (z) shall not apply if any Investor Designee recommends for approval or adopts such amendment;
(ii) if the Company enters into, or publicly announces any plans to enter into, any agreement or understanding with respect to the sale or disposition of all or substantially all of the equity or assets of the Company or any of its significant subsidiaries (as such term is defined in Rule 405 of the Securities Act) or other extraordinary transaction, nothing in this Section 4.1 shall prohibit or restrict Exxxxxx or its Affiliates from making any private statements (written or oral) with respect to such sale or disposition;
(iii) nothing in this Section 4.1 shall be understood to prohibit or otherwise limit Exxxxxx and respond to its controlled Affiliates from (w) (A) negotiating with third parties, evaluating or trading, directly or indirectly in any related inquiries from non-convertible indebtedness of the Company or any of its Subsidiaries, Derivative Instruments that can only be settled with cash payments, exchange traded fund, benchmark or other basket of securities which may contain, or may otherwise reflect the performance of, any securities of the Company, (B) selling Equity Securities or exercising rights in accordance with the Registration Rights Agreement or (C) pledging, lending or granting a security interest in any Equity Securities, (x) engaging in private communications with the Chairman of the Board, provided that Chief Executive Officer or other senior executive officers or their designees, in each case, only so long as such private communications would not reasonably be expected to require any public disclosure thereof by the Company or Exxxxxx or any of its controlled Affiliates, (y) making any factual statement to comply with any oral questions, interrogatories, requests for information or documents, subpoenas, civil investigative demand or similar process by any Governmental Entity or pursuant to Law (so long as such proposal shall be conditioned process or request did not arise as a result of discretionary acts by Exxxxxx or any of its controlled Affiliates), including in accordance with Section 4.3(b), or (z) granting any liens or encumbrances on approval any claims or interests in favor of a bank or broker-dealer or prime broker holding such claims or interests in custody or prime brokerage in the ordinary course of business, which lien or encumbrance is released upon the transfer of such claims or interests in accordance with the terms of the Boardcustody or prime brokerage agreement(s), as applicable;
(iv) nothing in this Section 4.1 shall prohibit or restrict any Investor Designee serving as a Director, in his or her personal capacity as a Director, from exercising his or her rights and fiduciary duties as a Director of the Company, or engaging in any discussions solely among other members of the Board or management, advisors, representatives or agents of the Company; and
(v) nothing in this Section 4.1 shall prohibit or restrict any Investor Designee serving as a Director from communicating with any employee of the Company or its subsidiaries in any manner consistent with applicable Company policies and ordinary Company practices.
Appears in 1 contract
Standstill Restrictions. Section 6.1 Until (a) From and after the later date of (x) this Agreement until the time date that the Investor’s Ownership Percentage no Investor Nominee is less than 25% of the Diluted Common Shares and (y) the third anniversary of the Original XXX Date (and, in the case of (iv) – (vii), only for so long as the designees of Investor under Section 2.1(a) are seated entitled to serve on the Board pursuant to Section 2.1 and Section 2.4(b) and other than with respect to (the election “Standstill Period”), without the prior written consent of the Company, Investor Designees)Parent, neither the Investor, and each Investor nor any Investor Affiliate Participant shall not, and shall cause each of their respective Controlled Affiliates and shall direct their Representatives acting on their behalf not to, directly or indirectly:
(i) except as provided in to the extent expressly permitted by Section 54.5(j), directly or indirectly acquire, agree to acquire, propose or offer to acquire, beneficial ownership or seek to acquire (including through the acquisition of Beneficial Ownership) any equity securities Equity Securities or Derivative Instruments of the Company; provided that, for purposes of this Section 4.1(a)(i), (A) any warrant member of a Group will be deemed to have Beneficial Ownership of all securities Beneficially Owned by other members of the Group; and (B) a Person will be deemed to be the Beneficial Owner of any Equity Securities of the Company which may be acquired by such Person whether within sixty (60) days or option to purchase such securitiesthereafter, any security convertible into any such securitiesupon the conversion, exchange or any other right to acquire such securities, other than the Common Stock issued pursuant to the CoyCo Transaction Agreement, the Converted Investor Warrant, Common Stock acquired upon exercise of the Converted Investor Warrant and any Common Stock paid as dividends rights, options, warrants or as similar securities to subscribe for, purchase or otherwise would not increase the Investor’s beneficial ownership acquire Equity Securities of the Company’s ; provided, further, that, notwithstanding the foregoing, (1) for so long as Investor Anchor Beneficially Owns shares of Common Stock by equal to or greater than 1the 25% on an as-converted basisThreshold, (ii) bring any action or otherwise act to contest the validity of the restrictions set forth nothing in this Section 64.1(a)(i) shall restrict Investor Parent, Investor, any Investor Participant or any of their respective Controlled Affiliates from acquiring, agreeing to acquire, proposing or offering to acquire, or seek seeking to acquire any shares of Common Stock, and each such Person shall be expressly permitted to take such actions, if such Persons would collectively Beneficially Own, after giving effect to such action, a release number of Equity Securities or Derivative Instruments representing not more than 31.0% of the then-outstanding shares of Common Stock (calculated on a Fully-Diluted basis) (such restrictionspercentage, the “Cap”), and (iii2) deposit in the case of an Involuntary Top-Up Event, Section 4.1(a)(i) shall not prohibit Investor, Investor Parent or any of their respective Controlled Affiliates from acquiring, agreeing to acquire, proposing or offering to acquire, or seeking to acquire any shares of Common Stock, and each such Person shall be expressly permitted to take such actions, with respect to a sufficient number of shares of Common Stock in a voting trust or similar arrangement or subject order to reverse the effect of any Common Stock dilution to any voting agreementthe Voting Interest of Investor Anchor resulting from the Involuntary Top-Up Event, pooling arrangement or similar arrangement, or grant any proxy with respect to any Common Stock to any person not affiliated in accordance with the Investor or Company management; terms and conditions of (ivand within the time periods set forth in) Section 4.1(c).
(ii) make, or in any way participate or engage inparticipate, directly or indirectly, in any solicitation of proxies to voteproxies, authorizations, or written consents, seek to advise or influence any person Person with respect to the voting ofof any Equity Securities, or conduct any voting securities other type of referendum in respect of the Equity Securities of the Company or from any holders of Subsidiary the Equity Securities of the Company;
(iii) except to the extent expressly contemplated by Section 4.2, (x) present at any meeting of the Company’s stockholders any proposal for consideration for action by stockholders, or nominate or propose any nominee for election to the Board, or (y) seek the removal of any member of the Board (except for any Investor Nominee);
(iv) commence any tender offer or exchange offer for shares of Equity Securities without the prior written consent of the Board (for the avoidance of doubt, tendering into any tender offer or exchange offer not commenced by the Company or its Subsidiaries will not, in and of itself, violate this Section 4.1(a)(iv));
(v) form, join or in any way participate in a “group” Group (within excluding, for the meaning avoidance of doubt, any Group comprised solely of Investor Anchor), for the purpose of voting, acquiring, holding, or disposing of, any Equity Securities;
(vi) other than as expressly permitted by Section 13(d)(3) of 4.1(b), submit to the Exchange Act) Board a written proposal for or offer of, with respect to or without conditions, any voting securities of merger, recapitalization, reorganization, business combination or other extraordinary transaction involving the Company or any Subsidiary thereof, or make any public announcement with respect to such proposal or offer;
(vii) request the Company or any of its Subsidiaries, directly or indirectly, to amend or waive any provision of this Agreement in a manner that would reasonably be expected to require the Company, Investor Parent, Investor or their respective Affiliates to make any public disclosure;
(viii) call, or seek to call, a meeting of the stockholders of the Company except or its Subsidiaries or initiate any stockholder proposal, or initiate or propose any action by written consent, in each case for any group constituting solely action by the stockholders of the Investor and Investor Affiliates, (vi) seek the removal of any directors from the Board Company or a change in the size or composition of the Board (including, without limitation, voting for any directors not nominated by the Board), except as otherwise provided in Section 2.4(b), (vii) call, request the calling of, or otherwise seek or assist in the calling of a special meeting of the shareholders of the Company, (viii) disclose any intention, plan or arrangement prohibited by, or inconsistent with, the foregoing or its Subsidiaries; or
(ix) makemake any public proposal or publicly disclose any intention or plan, or take, take any action that would reasonably be expected to cause require the Company or Investor Anchor to make a any public announcement regarding disclosure or announcement, with respect to any intention transaction or any other matters that are the subject of this Section 4.1.
(b) Notwithstanding anything to the contrary in Section 4.1, (i) no action or activity required or otherwise expressly contemplated to be taken by Investor or its Affiliates or an Investor Nominee under this Agreement or the Transaction Agreement or any exhibit thereto shall be or be deemed to take an action that would be prohibited restricted by or subject to the foregoingprohibitions set forth in Section 4.1; provided, however, that the foregoing (ii) this Section 4.1 shall not prevent or restrict the Investor from complying with applicable law or the ability of the Investor Designees or other directors appointed or elected any of its Affiliates from (A) making any confidential proposal to the Board from exercising their fiduciary duties Company or powers the Board, so long as directors.
Section 6.2 Notwithstanding the foregoing, if the Board decides making or receipt of such proposal would not reasonably be expected to engage in a process that could give rise to a change of control of require the Company, Investor Parent, Investor or any of their respective Affiliates to make any public disclosure; and (B) participating as a potential purchaser (on the same terms, and subject to the same conditions, as other potential purchasers) in any process, bilateral negotiation or otherwise pursuant to which the Company provides confidential information to, or enters into negotiations with, a third party relating to a Change of Control on the terms and conditions established by the Board for such process; it being understood that (x) Investor shall invite provide prompt written notice (a “Sale Process Notice”) to the Investor Company of Investor’s intent to participate in such process on or negotiation (as applicable) within fifteen (15) Business Days of Investor’s receipt of the terms Company’s notice in respect of any such process or negotiation, and conditions generally made available (y) the restrictions set forth in Section 4.1(a) shall remain in effect notwithstanding the Company’s entry into a process or negotiation with a third party relating to a Change of Control, including if the Company executes a definitive agreement relating to such Change of Control and/or recommends to the other participants stockholders of the Company any third party tender offer or exchange offer for Equity Securities that would result in a Change of Control. If Investor provides a Sale Process Notice to the Company, Investor shall, and shall cause any Investor Nominee to (as applicable), (x) promptly recuse themselves from any Board (or any committee thereof) meeting involving or relating to such process; providedprocess or negotiation (as applicable), howeverand (y) except at the invitation of the Board, that in the event the Investor participates in such processnot communicate with, each Investor Designee shall recuse himself or herself from voting onparticipate in, or otherwise receiving seek to affect the outcome of, discussions and votes of the Board (or any confidential information regardingcommittee thereof) with respect to any matters coming before it in respect of such process or negotiation (as applicable). Notwithstanding anything to the contrary provided in this Agreement, matters Investor, Investor Parent and their respective Controlled Affiliates shall not be restricted from making any disclosure that such party determines in good faith, and on the advice of counsel, is required pursuant to applicable Law.
(c) If after the date hereof any Top-Up Event occurs:
(i) (A) in the case of a Voluntary Top-Up Event, during the Trading Period following such Top-Up Event, Section 4.1 shall not prohibit Investor, Investor Parent or any of their respective Controlled Affiliates from acquiring, agreeing to acquire, proposing or offering to acquire, or seeking to acquire any shares of Common Stock, and each such Person shall be expressly permitted to take such actions, with respect to a sufficient number of shares of Common Stock in order to reverse the effect of any dilution to the Voting Interest of Investor Anchor resulting from the Voluntary Top-Up Event; provided that in no event shall this Section 4.1(c)(i)(A) permit Investor, Investor Parent or any of their respective Controlled Affiliates to purchase a number of shares of Common Stock representing more than 5% of the outstanding shares of Common Stock as of the date of such Top-Up Event, and (B) in the case of an Involuntary Top-Up Event, Section 4.1 shall not prohibit Investor, Investor Parent or any of their respective Controlled Affiliates from acquiring, agreeing to acquire, proposing or offering to acquire, or seeking to acquire any shares of Common Stock, and each such Person shall be expressly permitted to take such actions, with respect to a sufficient number of shares of Common Stock in order to reverse the effect of any dilution to the Voting Interest of Investor Anchor resulting from the applicable dilutive event pursuant to Section 4.1(a)(i)(2);
(ii) during the Trading Period following such Top-Up Event, Investor may continue to designate the applicable number of Investor Nominees to the Board pursuant to Section 3.2, shall not be obligated to cause any Investor Nominee to resign pursuant to Section 3.7(a) and shall retain its other rights and obligations hereunder arising from its Beneficial Ownership of shares of Common Stock above the applicable Threshold; and
(iii) the rights and obligations of Investor, Investor Parent and their respective Controlled Affiliates arising from their Beneficial Ownership of shares of Common Stock above an applicable Threshold that were in effect prior to any Top-Up Event shall continue to be in effect following the end of such Trading Period so long Investor Anchor Beneficially Owns the shares of Common Stock at the end of such Trading Period equal to or greater than the applicable Threshold; provided that, for the avoidance of doubt, to the extent Investor Anchor’s exercise of (or failure to exercise) any Top-Up Rights in connection with an Involuntary Top-Up Event does not cause the process; provided, further, however, that, following number of shares of Common Stock Beneficially Owned by Investor Anchor to exceed the termination applicable Threshold at the end of the Investor’s participation Trading Period following such Top-Up Event, Investor Anchor shall no longer have the designation rights set forth in Article III in respect of such Threshold from and after the end of such Trading Period (irrespective of any process, the Investor’s right to vote on, and receive confidential information about, the process shall be reinstated. In addition, if requested by the Board, the Investor may submit a confidential private acquisition proposal future exercise of Top-Up Rights or any other rights under this Agreement).
(d) Notwithstanding anything to the Board contrary provided herein, nothing in this Agreement shall (x) restrict a Party with Top-Up Rights from simultaneously or consecutively exercising such Top-Up Rights arising out of a Voluntary Top-Up Event and respond an Involuntary Top-Up Event, or (y) permit any Person to any related inquiries from exercise Top-Up Rights to the Board, provided that any such proposal shall be conditioned on approval extent Investor Anchor would Beneficially Own Equity Securities or Derivative Instruments in excess of the BoardCap.
Appears in 1 contract
Standstill Restrictions. Section 6.1 Until (a) From and after the later date of this Agreement until the first date on which both of the below conditions are satisfied: (x) for the time immediately preceding thirty (30) days, no Investor Nominee has served on the Board (it being understood that the Investor’s Ownership Percentage if no Investor Nominee is less than 25% a member of the Diluted Common Shares Board due to circumstances in which the Investor would be entitled to designate a Replacement pursuant to Section 3.7(c), an Investor Nominee shall be deemed to continue to be a member of the Board for all purposes of this Agreement until such time as the Investor irrevocably waives in writing any right to designate such a Replacement) and (y) no less than twenty-four (24) months have elapsed following the third anniversary of Closing (the Original XXX Date (and, in the case of (iv) – (vii“Standstill Period”), only for so long as without the designees of Investor under Section 2.1(a) are seated on the Board pursuant to Section 2.1 and Section 2.4(b) and other than with respect to the election of the Investor Designees), neither the Investor nor any Investor Affiliate shall (i) except as provided in Section 5, directly or indirectly acquire, agree to acquire, or offer to acquire, beneficial ownership of any equity securities prior written consent of the Company, any warrant or option to purchase such securitiesthe Holders shall not, any security convertible into any such securities, or any other right to acquire such securities, other than the Common Stock issued pursuant to the CoyCo Transaction Agreement, the Converted Investor Warrant, Common Stock acquired upon exercise of the Converted Investor Warrant and any Common Stock paid as dividends or as otherwise would shall cause their respective Affiliates not increase the Investor’s beneficial ownership of the Company’s Common Stock by greater than 1% on an as-converted basis, (ii) bring any action or otherwise act to contest the validity of the restrictions set forth in this Section 6, or seek a release of such restrictions, (iii) deposit Common Stock in a voting trust or similar arrangement or subject any Common Stock to any voting agreement, pooling arrangement or similar arrangement, or grant any proxy with respect to any Common Stock to any person not affiliated with the Investor or Company management; (iv) make, or in any way participate or engage into, directly or indirectly, alone or in concert with any solicitation of proxies other Person (including assisting or forming a Group or participating with or encouraging other persons to vote, form a Group):
(i) acquire or seek to acquire any securities of the Company (including derivatives, convertible securities or other forms of constructive economic ownership in the Company), provided that the foregoing shall not prohibit purchases pursuant to Section 4.4 or bona fide open market purchases of Common Stock after the Closing that would not result in any Holder, together with the Controlled Affiliates, collectively Beneficially Owning a number of Equity Securities equal to or convertible into 20% or more of the then-outstanding Common Stock (the “Cap”) (provided that this Section 4.1(a)(i) shall be amended on the first date that the Company grants an exemption from XXXX §000 to a third party for purchases of Common Stock in excess of 20% to reflect such higher number in the exemption granted to such third party);
(ii) solicit proxies or written consents or conduct any other type of referendum in respect of the Voting Securities of the Company or from any holders of the Voting Securities of the Company, or become a participant or assist any third party in any solicitation;
(iii) encourage, advise or influence any other person or assist any third party in so encouraging, assisting or influencing any person with respect to the voting ofgiving or withholding of any proxy, any voting securities of the Company consent or any of Subsidiary of the Company, (v) form, join other authority to vote or in conducting any way participate other type of referendum;
(iv) form or join in a “partnership, limited partnership, syndicate or other group” (within the meaning of , including without limitation a group as defined under Section 13(d)(313(d) of the Exchange Act) , with respect to any voting securities of the Company or any Subsidiary of the Company except for any group constituting solely of the Investor and Investor Affiliates, (vi) seek the removal of any directors from the Board or a change in the size or composition of the Board (including, without limitation, voting for any directors not nominated by the Board), except as otherwise provided in Section 2.4(b), (vii) call, request the calling of, or otherwise seek or assist in the calling of a special meeting of the shareholders Voting Securities of the Company, or otherwise support or participate in any effort by a third party with respect to the matters set forth in Section 4.1(a)(ii) above;
(v) present at any meeting of the Company’s stockholders any proposal for consideration for action by stockholders or propose any nominee for election to the Board;
(vi) grant any proxy, consent or other authority to vote (other than to designated representatives of the Company pursuant to a proxy statement of the Company) any Voting Securities or subject them to a voting trust or similar arrangement;
(vii) make any request for books and records under the DGCL;
(viii) disclose make any intention, plan or arrangement prohibited by, or inconsistent with, the foregoing or (ix) make, or take, any action public statements that would reasonably be expected to cause disparage the Company to make a public announcement regarding Company, its officers or its directors or any intention person who has served as an officer or director of the Investor to take an action that would be prohibited by the foregoingCompany, in each case, in their capacity as such; provided, however, that the foregoing any statements made by Investor’s non-controlled Affiliates shall not restrict be deemed to be a violation of this Section 4.1(a)(viii), it being understood that following such a statement by a non-controlled Affiliate of Investor, upon the Investor from complying with applicable law or the ability of the Investor Designees or other directors appointed or elected to the Board from exercising their fiduciary duties or powers as directors.
Section 6.2 Notwithstanding the foregoing, if the Board decides to engage in a process that could give rise to a change of control request of the Company, Investor shall use its reasonable best efforts to cause such non-controlled Affiliates to cease making any further statements in violation of this Section 4.1(a)(viii); provided, further, that any statements made by individual members of the supervisory board of Investor not acting at the direction of Investor or its Affiliates shall not be deemed to be a violation of this Section 4.1(a)(viii);
(ix) institute, solicit or join any litigation or other proceeding against the Company shall invite the Investor to participate in such process on the terms or any of its current and conditions generally made available to the other participants in such processformer directors or officers (including derivative actions); provided, however, that a Holder and its Affiliates shall be permitted to pursue the resolution of any dispute (a) relating to or arising out of this Agreement, the Stock Purchase Agreement, the Commercial Agreements (as such term is defined in the event Stock Purchase Agreement) or any other agreement between the Investor participates Parties through the dispute resolution mechanisms set forth in such processagreements (the “Covered Matters”) or (b) following compliance with the dispute escalation procedures set forth in Section 4.6 with respect to such dispute, each other matters if (and only if) such matters do not relate to or arise out of (1) the Covered Matters or (2), without limiting clause (a), such Holder’s Beneficial Ownership of securities in the Company or any Investor Designee shall recuse himself Nominee position on the Board or herself from voting onany of its committees;
(x) propose or participate in any (A) tender or exchange offer, merger, acquisition or other business combination or (B) form of business combination or acquisition or other transaction relating to a material amount of assets of the Company; or
(xi) make any public proposal or publicly disclose any intention or plan, or otherwise receiving take any confidential information regardingaction that could require the Company to make any public disclosure, with respect to any matters in connection with that are the processsubject of this Section 4.1; provided, further, however, that, that if during the Standstill Period a third party commences a bona fide tender or exchange offer for securities of the Company representing 20% or more of the Company’s aggregate voting power and the Board either (A) publicly recommends that stockholders of the Company tender their Common Stock into such tender or exchange offer or (B) does not recommend against stockholders of the Company tendering their shares into such offer within the fifteen (15) Business Day period following the termination commence of the Investor’s participation in any processsuch tender or exchange offer, the Investor’s right to vote on, then Investor and receive confidential information about, the process its Affiliates shall be reinstated. In addition, if requested by the Board, the Investor may submit permitted to make and publicly disclose a confidential private acquisition proposal counterproposal to the Board and respond to any related inquiries from the Boardand/or commence a tender or exchange offer, provided that any such proposal shall be conditioned on approval in each case, for 100% of the Boardoutstanding shares of Common Stock.
(b) This Section 4.1 shall not prevent or restrict Investor’s or its Affiliates’ ability to make confidential proposals to the Company that would not reasonably be expected to result in public disclosure by the Company.
Appears in 1 contract
Samples: Shareholder Agreement (Navistar International Corp)
Standstill Restrictions. Section 6.1 Until (a) From and after the later Closing Date until the earlier of (xA) the time that the Investor’s Ownership Percentage is less than 25% of the Diluted Common Shares and two (y2) the third year anniversary of the Original XXX Closing Date and (and, B) the date the Stockholder’s employment as the Chief Executive Officer of the Company is terminated without “Cause” or for “Good Reason” (each as defined in the Stockholder’s Employment Agreement) (the “Standstill Period”), the Stockholder shall not, and the Stockholder shall cause each of its controlled Affiliates not to, directly or indirectly, alone or in concert with any other Person, except as expressly set forth in this Section 4.1 or Section 5.1(f)(iii):
(i) purchase or cause to be purchased or otherwise acquire or agree to acquire Beneficial Ownership of (A) any Voting Securities in addition to the Stockholder Shares (such Beneficial Ownership in addition to the Stockholder Shares, the “Excess Amount”) (the parties agree that it shall not be a breach of this Section 4.1(a)(i) if the Stockholder, together with his Affiliates, Beneficially Own the Excess Amount solely as a result of (I) share purchases, reverse share splits or other actions taken by the Company that, by reducing the number of shares outstanding (or issuing Voting Securities to the Stockholder Designee pursuant to the Company’s Director compensation plan), cause the Stockholder, together with his Affiliates, to Beneficially Own any Excess Amount, (II) shares purchased, acquired or Beneficially Owned by the Stockholder or any of his Affiliates in the ordinary course of business as a result of the acquisition of any portfolio company or other investment entity that owns any such shares at the time of such acquisition if such additional shares represent five percent (5%) or less of then outstanding Voting Securities or such purchase, acquisition or Beneficial Ownership is approved in advance by the Board; provided, that in any such case the Stockholder shall use his reasonable efforts following consummation of such purchase, acquisition or Beneficial Ownership to dispose of such additional Voting Securities on commercially reasonable terms subject to compliance with applicable securities Laws; provided further, that the Beneficial Ownership of the Stockholder, together with his Affiliates, does not further increase thereafter, other than solely as a result of further corporate actions taken by the Company) or (III) the Stockholder’s investment as a passive investor in a mutual fund or other investment fund that owns shares of Voting Securities, or (B) any other securities issued by the Company (other than any such securities purchased, acquired or Beneficially Owned by the Stockholder or any of his Affiliates in the ordinary course of business as a result of the acquisition of any portfolio company or other investment entity that owns any such securities at the time of such acquisition if such other securities represent five percent (5%) or less of then outstanding securities of such class, series or type or such purchase, acquisition or Beneficial Ownership is approved by the Board; provided, that in any such case the Stockholder shall use his reasonable efforts following consummation of such purchase, acquisition or Beneficial Ownership to dispose of such other securities on commercially reasonable terms subject to compliance with applicable securities Laws);
(ii) propose, offer or participate in any effort to acquire the Company or any of its Subsidiaries or any assets or operations of the Company or any of its Subsidiaries;
(iii) induce or attempt to induce any third party to propose, offer or participate in any effort to acquire Beneficial Ownership of Voting Securities (other than the Stockholder Shares as and to the extent permitted in accordance with ARTICLE V);
(iv) – propose, offer or participate in any hostile tender offer, exchange offer, merger, acquisition, share exchange or other business combination or Change of Control transaction involving the Company or any of its Subsidiaries, or any recapitalization, restructuring, liquidation, disposition, dissolution or other extraordinary transaction involving the Company, any of its Subsidiaries or any material portion of their businesses, provided that the Stockholder shall not be prohibited from tendering his shares of Stockholder Stock in any tender offer made by any party that is not the Stockholder or any of his Affiliates that is approved by the Board;
(viiv) seek to call, request the call of, or call a special meeting of the stockholders of the Company (other than in his role as a Director or officer of the Company), only or make or seek to 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 in connection with any action by consent in lieu of a meeting, or make a request for so long as a list of the designees of Investor under Section 2.1(a) are seated Company’s stockholders, or seek election to the Board or seek to place a representative on the Board pursuant to Section 2.1 and Section 2.4(b) and (in each case other than as expressly set forth in Section 3.1), or seek the removal of any Director from the Board, or otherwise acting alone or in concert with others, seek to control or influence the governance or policies of the Company (other than in his role as a Director or officer of the Company);
(vi) solicit proxies, designations or written consents of stockholders, or conduct any binding or nonbinding referendum with respect to Voting Securities, or make or in any way participate in any “solicitation” of any “proxy” within the meaning of Rule 14a-1 promulgated by the SEC under the Exchange Act (but without regard to the exclusion set forth in Rule 14a-1(l)(2)(iv) from the definition of “solicitation”) to vote any Voting Securities with respect to any matter (in each case other than in his role as a Director or officer of the Company), or become a participant in any contested solicitation for the election of directors with respect to the election Company (as such terms are defined or used in the Exchange Act and the rules promulgated thereunder), other than solicitations or acting as a participant in support of the Investor Designees)voting obligations of the Stockholder pursuant to Section 4.3;
(vii) make or issue or cause to be made or issued any public disclosure, neither announcement or statement (including without limitation the Investor nor any Investor Affiliate shall (i) except as provided in Section 5, directly or indirectly acquire, agree to acquire, or offer to acquire, beneficial ownership filing of any equity securities of document or report with the Company, any warrant or option to purchase such securities, any security convertible into any such securities, SEC or any other right Governmental Authority or any disclosure to acquire such securitiesany journalist, member of the media or securities analyst) (A) in support of any solicitation described in clause (vi) above (other than the Common Stock issued pursuant to the CoyCo Transaction Agreementsolicitations on behalf of, and approved by, the Converted Investor WarrantBoard), Common Stock acquired upon exercise (B) in support of any matter described in clause (v) above, (C) concerning any potential matter described in clause (iv) above or (D) negatively or disparagingly commenting about the Converted Investor Warrant and Company or any Common Stock paid as dividends or as otherwise would not increase the Investor’s beneficial ownership of the Company’s Common Stock Directors, officers, key employees, businesses, operations or strategic plans or strategic directions;
(viii) form, join, or in any other way participate in, a “partnership, limited partnership, syndicate or other group” within the meaning of Section 13(d)(3) of the Exchange Act with respect to the Voting Securities, or deposit any Voting Securities in a voting trust or similar arrangement, or subject any Voting Securities to any voting agreement (other than as contemplated by greater this Agreement) or pooling arrangement, or grant any proxy, designation or consent with respect to any Voting Securities (other than 1% to a designated representative of the Company pursuant to a proxy or consent solicitation on an as-converted basisbehalf of the Board), other than solely with one or more Affiliates (iiother than portfolio or operating companies) of the Stockholder with respect to the Stockholder Shares or other Voting Securities acquired in compliance with clause (i) above or to the extent such a group may be deemed to result with the Company or any of its Affiliates as a result of this Agreement (it being understood that the holding by persons or entities of Voting Securities in accounts or through funds not managed or controlled by the Stockholder or any Affiliate of the Stockholder shall not give rise to a violation of this clause (viii) solely by virtue of the fact that such Persons, in addition to holding such shares in such manner, are investors in funds and accounts managed by the Stockholder or any of his Affiliates and, in their capacity as such, are or may be deemed to be members of a “group” with the Stockholder within the meaning of Section 13(d)(3) of the Exchange Act with respect to the Voting Securities; provided there does not exist as between such Persons, on the one hand, and the Stockholders or any of his Affiliates, on the other hand, any agreement, arrangement or understanding with respect to any action that would otherwise be prohibited by this Section 4.1);
(ix) publicly disclose, or cause or facilitate the public disclosure (including without limitation the filing of any document or report with the SEC or any other Governmental Authority or any disclosure to any journalist, member of the media or securities analyst) of, any intent, purpose, plan or proposal to obtain any waiver, consent under, or amendment of, any of the provisions of Sections 4.1, 4.2 or 4.3, or otherwise (A) seek in any manner to obtain any waiver, consent under, or amendment of, any provision of this Agreement or (B) bring any action or otherwise act to contest the validity or enforceability of the restrictions set forth in this Section 6Sections 4.1, 4.2 or 4.3 or seek a release of such restrictionsfrom the restrictions or obligations contained in Sections 4.1, 4.2 or 4.3; or
(iiix) deposit Common Stock in a voting trust enter into any discussions, negotiations, agreements or similar arrangement or subject understandings with any Common Stock Person with respect to any voting agreement, pooling arrangement or similar arrangementthe foregoing, or grant advise, assist, encourage, support, provide financing to or seek to persuade others to take any proxy action with respect to any Common Stock to any person not affiliated with of the Investor or Company management; (iv) makeforegoing, or act in any way participate concert with others or engage in, directly or indirectly, any solicitation as part of proxies to vote, or seek to advise or influence any person with respect to the voting of, any voting securities of the Company or any of Subsidiary of the Company, (v) form, join or in any way participate in a “group” group (within the meaning of Section 13(d)(3) of the Exchange Act) with respect to any voting securities of the foregoing.
(b) This Section 4.1 shall not, in any way, prevent, restrict, encumber or limit (i) the Stockholder and his Affiliates from (A) exercising their respective rights, performing their respective obligations or otherwise consummating the Merger or the transactions contemplated by this Agreement and the Merger Agreement, in each case in accordance with the terms hereof or thereof, (B) if the Board has previously authorized or approved the solicitation by the Company of bids or indications of interest in the potential acquisition of the Company or any Subsidiary of its assets or operations by auction or other sales process (each, a “Sales Process”), participating in such Sales Process and, if selected as the successful bidder by the Company, completing the acquisition contemplated thereby, provided that the Stockholder and his controlled Affiliates shall otherwise remain subject to the provisions of this Section 4.1 in all respects during and following the completion of the Sales Process, or (C) engaging in confidential discussions with the Board or any of its members regarding any of the matters described in this Section 4.1, provided that the Stockholder and his controlled Affiliates will not pursue (or publicly disclose the existence of such discussions regarding) any such matters, or (ii) any Stockholder Designee then serving as a Director from acting as a Director or exercising and performing his or her duties (fiduciary and otherwise) as a Director in accordance with the Company’s Organizational Documents, all codes and policies of the Company except for any group constituting solely and all Laws, rules, regulations and codes of the Investor practice, in each case as may be applicable and Investor Affiliates, (vi) seek the removal of any directors in effect from the Board or a change in the size or composition of the Board (including, without limitation, voting for any directors not nominated by the Board), except as otherwise provided in Section 2.4(b), (vii) call, request the calling of, or otherwise seek or assist in the calling of a special meeting of the shareholders of the Company, (viii) disclose any intention, plan or arrangement prohibited by, or inconsistent with, the foregoing or (ix) make, or take, any action that would reasonably be expected time to cause the Company to make a public announcement regarding any intention of the Investor to take an action that would be prohibited by the foregoing; provided, however, that the foregoing shall not restrict the Investor from complying with applicable law or the ability of the Investor Designees or other directors appointed or elected to the Board from exercising their fiduciary duties or powers as directorstime.
Section 6.2 Notwithstanding the foregoing, if the Board decides to engage in a process that could give rise to a change of control of the Company, the Company shall invite the Investor to participate in such process on the terms and conditions generally made available to the other participants in such process; provided, however, that in the event the Investor participates in such process, each Investor Designee shall recuse himself or herself from voting on, or otherwise receiving any confidential information regarding, matters in connection with the process; provided, further, however, that, following the termination of the Investor’s participation in any process, the Investor’s right to vote on, and receive confidential information about, the process shall be reinstated. In addition, if requested by the Board, the Investor may submit a confidential private acquisition proposal to the Board and respond to any related inquiries from the Board, provided that any such proposal shall be conditioned on approval of the Board.
Appears in 1 contract
Standstill Restrictions. Section 6.1 Until (a) From and after the later date of (x) this Agreement until the time date that the Investor’s Ownership Percentage no Investor Nominee is less than 25% of the Diluted Common Shares and (y) the third anniversary of the Original XXX Date (and, in the case of (iv) – (vii), only for so long as the designees of Investor under Section 2.1(a) are seated entitled to serve on the Board pursuant to Section 2.1 and Section 2.4(b) and other than with respect to (the election “Standstill Period”), without the prior written consent of the Company, Investor Designees)Parent, neither the Investor, and each Investor nor any Investor Affiliate Participant shall not, and shall cause each of their respective Controlled Affiliates and shall direct their Representatives acting on their behalf not to, directly or indirectly:
(i) except as provided in to the extent expressly permitted by Section 54.5(j), directly or indirectly acquire, agree to acquire, propose or offer to acquire, beneficial ownership or seek to acquire (including through the acquisition of Beneficial Ownership) any equity securities Equity Securities or Derivative Instruments of the Company; provided that, for purposes of this Section 4.1(a)(i), (A) any warrant member of a Group will be deemed to have Beneficial Ownership of all securities Beneficially Owned by other members of the Group; and (B) a Person will be deemed to be the Beneficial Owner of any Equity Securities of the Company which may be acquired by such Person whether within sixty (60) days or option to purchase such securitiesthereafter, any security convertible into any such securitiesupon the conversion, exchange or any other right to acquire such securities, other than the Common Stock issued pursuant to the CoyCo Transaction Agreement, the Converted Investor Warrant, Common Stock acquired upon exercise of the Converted Investor Warrant and any Common Stock paid as dividends rights, options, warrants or as similar securities to subscribe for, purchase or otherwise would not increase the Investor’s beneficial ownership acquire Equity Securities of the Company’s ; provided, further, that, notwithstanding the foregoing, (1) for so long as Investor Anchor Beneficially Owns shares of Common Stock by equal to or greater than 1the 25% on an as-converted basisThreshold, (ii) bring any action or otherwise act to contest the validity of the restrictions set forth nothing in this Section 64.1(a)(i) shall restrict Investor Parent, Investor, any Investor Participant or any of their respective Controlled Affiliates from acquiring, agreeing to acquire, proposing or offering to acquire, or seek seeking to acquire any shares of Common Stock, and each such Person shall be expressly permitted to take such actions, if such Persons would collectively Beneficially Own, after giving effect to such action, a release number of Equity Securities or Derivative Instruments representing not more than 31.0% of the then-outstanding shares of Common Stock (calculated on a Fully-Diluted basis) (such restrictionspercentage, the “Cap”), and (iii2) deposit in the case of an Involuntary Top-Up Event, Section 4.1(a)(i) shall not prohibit Investor, Investor Parent or any of their respective Controlled Affiliates from acquiring, agreeing to acquire, proposing or offering to acquire, or seeking to acquire any shares of Common Stock, and each such Person shall be expressly permitted to take such actions, with respect to a sufficient number of shares of Common Stock in a voting trust or similar arrangement or subject order to reverse the effect of any Common Stock dilution to any voting agreementthe Voting Interest of Investor Anchor resulting from the Involuntary Top-Up Event, pooling arrangement or similar arrangement, or grant any proxy with respect to any Common Stock to any person not affiliated in accordance with the Investor or Company management; terms and conditions of (ivand within the time periods set forth in) Section 4.1(c).
(ii) make, or in any way participate or engage inparticipate, directly or indirectly, in any solicitation of proxies to voteproxies, authorizations, or written consents, seek to advise or influence any person Person with respect to the voting ofof any Equity Securities, or conduct any voting securities other type of referendum in respect of the Equity Securities of the Company or from any holders of Subsidiary the Equity Securities of the Company;
(iii) except to the extent expressly contemplated by Section 4.2, (x) present at any meeting of the Company’s stockholders any proposal for consideration for action by stockholders, or nominate or propose any nominee for election to the Board, or (y) seek the removal of any member of the Board (except for any Investor Nominee);
(iv) commence any tender offer or exchange offer for shares of Equity Securities without the prior written consent of the Board (for the avoidance of doubt, tendering into any tender offer or exchange offer not commenced by the Company or its Subsidiaries will not, in and of itself, violate this Section 4.1(a)(iv));
(v) form, join or in any way participate in a “group” Group (within excluding, for the meaning avoidance of doubt, any Group comprised solely of Investor Anchor), for the purpose of voting, acquiring, holding, or disposing of, any Equity Securities;
(vi) other than as expressly permitted by Section 13(d)(3) of 4.1(b), submit to the Exchange Act) Board a written proposal for or offer of, with respect to or without conditions, any voting securities of merger, recapitalization, reorganization, business combination or other extraordinary transaction involving the Company or any Subsidiary thereof, or make any public announcement with respect to such proposal or offer;
(vii) request the Company or any of its Subsidiaries, directly or indirectly, to amend or waive any provision of this Agreement in a manner that would reasonably be expected to require the Company, Investor Parent, Investor or their respective Affiliates to make any public disclosure;
(viii) call, or seek to call, a meeting of the stockholders of the Company except or its Subsidiaries or initiate any stockholder proposal, or initiate or propose any action by written consent, in each case for any group constituting solely action by the stockholders of the Investor and Investor Affiliates, (vi) seek the removal of any directors from the Board Company or a change in the size or composition of the Board (including, without limitation, voting for any directors not nominated by the Board), except as otherwise provided in Section 2.4(b), (vii) call, request the calling of, or otherwise seek or assist in the calling of a special meeting of the shareholders of the Company, (viii) disclose any intention, plan or arrangement prohibited by, or inconsistent with, the foregoing or its Subsidiaries; or
(ix) makemake any public proposal or publicly disclose any intention or plan, or take, take any action that would reasonably be expected to cause require the Company or Investor Anchor to make a any public announcement regarding disclosure or announcement, with respect to any intention transaction or any other matters that are the subject of this Section 4.1.
(b) Notwithstanding anything to the contrary in Section 4.1, (i) no action or activity required or otherwise expressly contemplated to be taken by Investor or its Affiliates or an Investor Nominee under this Agreement or the Transaction Agreement or any exhibit thereto shall be or be deemed to take an action that would be prohibited restricted by or subject to the foregoingprohibitions set forth in Section 4.1; provided, however, that the foregoing (ii) this Section 4.1 shall not prevent or restrict the Investor from complying with applicable law or the ability of the Investor Designees or other directors appointed or elected any of its Affiliates from (A) making any confidential proposal to the Board from exercising their fiduciary duties Company or powers the Board, so long as directors.
Section 6.2 Notwithstanding the foregoing, if the Board decides making or receipt of such proposal would not reasonably be expected to engage in a process that could give rise to a change of control of require the Company, Investor Parent, Investor or any of their respective Affiliates to make any public disclosure; and (B) participating as a potential purchaser (on the same terms, and subject to the same conditions, as other potential purchasers) in any process, bilateral negotiation or otherwise pursuant to which the Company provides confidential information to, or enters into negotiations with, a third party relating to a Change of Control on the terms and conditions established by the Board for such process; it being understood that (x) Investor shall invite provide prompt written notice (a “Sale Process Notice”) to the Investor Company of Investor’s intent to participate in such process on or negotiation (as applicable) within fifteen (15) Business Days of Investor’s receipt of the terms Company’s notice in respect of any such process or negotiation, and conditions generally made available (y) the restrictions set forth in Section 4.1(a) shall remain in effect notwithstanding the Company’s entry into a process or negotiation with a third party relating to a Change of Control, including if the Company executes a definitive agreement relating to such Change of Control and/or recommends to the other participants stockholders of the Company any third party tender offer or exchange offer for Equity Securities that would result in a Change of Control. If Investor provides a Sale Process Notice to the Company, Investor shall, and shall cause any Investor Nominee to (as applicable), (x) promptly recuse themselves from any Board (or any committee thereof) meeting involving or relating to such process; providedprocess or negotiation (as applicable), howeverand (y) except at the invitation of the Board, that in the event the Investor participates in such processnot communicate with, each Investor Designee shall recuse himself or herself from voting onparticipate in, or otherwise receiving seek to affect the outcome of, discussions and votes of the Board (or any confidential information regardingcommittee thereof) with respect to any matters coming before it in respect of such process or negotiation (as applicable). Notwithstanding anything to the contrary provided in this Agreement, matters Investor, Investor Parent and their respective Controlled Affiliates shall not be restricted from making any disclosure that such party determines in good faith, and on the advice of counsel, is required pursuant to applicable Law.
(c) If after the date hereof any Top-Up Event occurs:
(i) (A) in the case of a Voluntary Top-Up Event, during the Trading Period following such Top-Up Event, Section 4.1 shall not prohibit Investor, Investor Parent or any of their respective Controlled Affiliates from acquiring, agreeing to acquire, proposing or offering to acquire, or seeking to acquire any shares of Common Stock, and each such Person shall be expressly permitted to take such actions, with respect to a sufficient number of shares of Common Stock in order to reverse the effect of any dilution to the Voting Interest of Investor Anchor resulting from the Voluntary Top-Up Event; provided that in no event shall this Section 4.1(c)(i)(A) permit Investor, Investor Parent or any of their respective Controlled Affiliates to purchase a number of shares of Common Stock representing more than 5% of the outstanding shares of Common Stock as of the date of such Top-Up Event, and (B) in the case of an Involuntary Top-Up Event, Section 4.1 shall not prohibit Investor, Investor Parent or any of their respective Controlled Affiliates from acquiring, agreeing to acquire, proposing or offering to acquire, or seeking to acquire any shares of Common Stock, and each such Person shall be expressly permitted to take such actions, with respect to a sufficient number of shares of Common Stock in order to reverse the effect of any dilution to the Voting Interest of Investor Anchor resulting from the applicable dilutive event pursuant to Section 4.1(a)(i)(2);
(ii) during the Trading Period following such Top-Up Event, Investor may continue to designate the applicable number of Investor Nominees to the Board pursuant to Section 3.2, shall not be obligated to cause any Investor Nominee to resign pursuant to Section
(a) and shall retain its other rights and obligations hereunder arising from its Beneficial Ownership of shares of Common Stock above the applicable Threshold; and
(iii) the rights and obligations of Investor, Investor Parent and their respective Controlled Affiliates arising from their Beneficial Ownership of shares of Common Stock above an applicable Threshold that were in effect prior to any Top-Up Event shall continue to be in effect following the end of such Trading Period so long Investor Anchor Beneficially Owns the shares of Common Stock at the end of such Trading Period equal to or greater than the applicable Threshold; provided that, for the avoidance of doubt, to the extent Investor Anchor’s exercise of (or failure to exercise) any Top-Up Rights in connection with an Involuntary Top-Up Event does not cause the process; provided, further, however, that, following number of shares of Common Stock Beneficially Owned by Investor Anchor to exceed the termination applicable Threshold at the end of the Investor’s participation Trading Period following such Top-Up Event, Investor Anchor shall no longer have the designation rights set forth in Article III in respect of such Threshold from and after the end of such Trading Period (irrespective of any process, the Investor’s right to vote on, and receive confidential information about, the process shall be reinstated. In addition, if requested by the Board, the Investor may submit a confidential private acquisition proposal future exercise of Top-Up Rights or any other rights under this Agreement).
(d) Notwithstanding anything to the Board contrary provided herein, nothing in this Agreement shall (x) restrict a Party with Top-Up Rights from simultaneously or consecutively exercising such Top-Up Rights arising out of a Voluntary Top-Up Event and respond an Involuntary Top-Up Event, or (y) permit any Person to any related inquiries from exercise Top-Up Rights to the Board, provided that any such proposal shall be conditioned on approval extent Investor Anchor would Beneficially Own Equity Securities or Derivative Instruments in excess of the BoardCap.
Appears in 1 contract
Standstill Restrictions. Section 6.1 Until (a) From and after the later of (x) Closing Date until the time date that Amberjack ceases to have the Investor’s Ownership Percentage is less than 25% of the Diluted Common Shares and (y) the third anniversary of the Original XXX Date (and, in the case of (iv) – (vii), only for so long as the right to nominate any designees of Investor under Section 2.1(a) are seated on to the Board pursuant to Section 2.1 and Section 2.4(b) and other than with respect to (the election of the Investor Designees“Standstill Period”), neither the Investor nor any Investor Affiliate Stockholders shall (i) except as provided in Section 5not, and the Stockholders shall cause each of their respective Affiliates not to, directly or indirectly acquireindirectly, agree to acquire, alone or offer to acquire, beneficial ownership of any equity securities of the Company, any warrant or option to purchase such securities, any security convertible into any such securities, or in concert with any other right to acquire such securitiesPerson, other than the Common Stock issued pursuant to the CoyCo Transaction Agreement, the Converted Investor Warrant, Common Stock acquired upon exercise of the Converted Investor Warrant and any Common Stock paid except as dividends or as otherwise would not increase the Investor’s beneficial ownership of the Company’s Common Stock by greater than 1% on an as-converted basis, (ii) bring any action or otherwise act to contest the validity of the restrictions expressly set forth in this Section 63.1:
(i) acquire, offer to acquire, or agree to acquire, directly or indirectly (whether beneficially, constructively or synthetically through any derivative, hedging or trading position or otherwise) any shares of Common Stock or other Voting Securities, unless (A) as a result of any stock split, stock dividend or distribution, subdivision, reorganization, reclassification, merger or similar capital transaction involving Equity Securities of the Company, (B) approved by Directors representing 80% of the entire Board (rounded down to the nearest whole number) or (C) after such acquisition the beneficial or record ownership of shares of Common Stock or any other Voting Securities of the Company by the Stockholders does not exceed the Standstill Level; provided that no Stockholder shall be in breach of this Section 3.1(a)(i) as a result of the acquisition by any Amberjack Designee of any Equity Securities of the Company pursuant to (x) the grant or vesting of any equity compensation awards granted by the Company to any Amberjack Designee, or (y) the exercise of any stock options, restricted stock units, or similar awards relating to any Equity Securities of the Company granted by the Company to any Amberjack Designee;
(ii) make, or in any way participate in, directly or indirectly, any “solicitation” of “proxies” (as such terms are used in the rules of the SEC promulgated under Section 14 of the Exchange Act) to vote, or seek to advise or influence any Person with respect to the voting of, any Voting Securities of the Company, in each case other than in a release of such restrictions, manner that is consistent with the Board’s recommendation or Xxxxxxxxx’s nomination rights under this Agreement;
(iii) deposit Common Stock in any Voting Securities into a voting trust or similar arrangement or subject any Common Stock Voting Securities to any voting agreement, pooling arrangement or similar arrangement, form or join in a partnership, limited partnership, syndicate or other group (including a Group), with respect to Voting Securities or grant any proxy with respect to any Common Stock Voting Securities other than to any person not affiliated with a Person designated by the Investor Board or Company management; by and among Amberjack, the Principal Stockholders and their Permitted Transferees;
(iv) makemake any public announcement with respect to, or submit a proposal for, or otherwise act alone or in concert with others to seek any change to management of the Company or the Board or propose, alone or in concert with others, any nominees for election to the Board other than pursuant to its rights under the Charter, Section 2.1(a) or Section 2.1(e);
(v) make any public announcement with respect to, or submit a proposal for, or offer of (with or without conditions) or ask or request any other person to make such a proposal or offer of, or in any other way participate or engage in, directly or indirectlysupport, any solicitation merger, consolidation, business combination, tender or exchange offer, restructuring, recapitalization or other extraordinary transaction of proxies to vote, or seek to advise or influence any person with respect to the voting of, any voting securities of involving the Company or any of Subsidiary of the Company, its Subsidiaries or their securities or assets (v) form, join unless such transaction is approved or in any way participate in a “group” (within the meaning of Section 13(d)(3) of the Exchange Act) with respect to any voting securities of the Company or any Subsidiary of the Company except for any group constituting solely of the Investor and Investor Affiliates, (vi) seek the removal of any directors from the Board or a change in the size or composition of the Board (including, without limitation, voting for any directors not nominated affirmatively recommended by the Board), except as otherwise provided in Section 2.4(b), ; or
(viivi) call, request the calling of, or otherwise seek or assist in the calling of a special meeting of the shareholders of the Company, (viii) disclose any intention, plan or arrangement prohibited by, or inconsistent with, the foregoing or (ix) make, or take, take any action that would reasonably be expected to cause or require the Company to make a public announcement regarding any intention of the Investor to take an action that would be actions prohibited by the foregoing; provided, however, that the foregoing shall not restrict the Investor from complying with applicable law or the ability of the Investor Designees or other directors appointed or elected to the Board from exercising their fiduciary duties or powers as directorsthis Section 3.1(a).
(b) This Section 6.2 Notwithstanding 3.1 shall not, in any way, prevent, restrict, encumber or limit (i) the foregoing, Stockholders from (A) if the Board decides has previously authorized or approved the solicitation by the Company of bids or indications of interest in the potential acquisition of the Company or any of its assets or operations by auction or other sales process (each, a “Sales Process”), participating in such Sales Process in accordance with any procedures established by the Company therefor and, if selected as the successful bidder by the Company, completing the acquisition contemplated thereby, provided that the Stockholders shall otherwise remain subject to engage the provisions of this Section 3.1 in all respects during the completion of the Sales Process, (B) engaging in confidential discussions with the Board or any of its members regarding any of the matters described in this Section 3.1, provided that the Stockholders will not pursue (or except as permitted by clause (C) below publicly disclose the existence of such discussions regarding) any such matters, or (C) taking any action necessary to comply with any Applicable Law or any action required by any Governmental Authority or any requirement of the Applicable Stock Exchange, (ii) any Amberjack Designee then serving as a process that could give rise Director from acting as a Director or exercising and performing his or her duties (fiduciary and otherwise) as a Director in accordance with Applicable Law, the Company’s Organizational Documents and its related guidelines and any corporate governance guidelines and the rules of the Applicable Stock Exchange, as applicable and as then in effect, or (iii) any Transfer otherwise permitted by Section 4.1. Notwithstanding anything to the contrary herein, the Standstill Period shall terminate if (i) a change third party commences a tender offer (within the meaning of control Rule 14d-2 under the Exchange Act) for at least 50% of the outstanding capital stock of the Company or commences a proxy contest with respect to the election of any directors of the Company and either (A) the Board of Directors of the Company does not, within 10 business days after the commencement of such offer or proxy contest, recommend against, as applicable, stockholders of the Company tendering their shares in such offer or voting for directors proposed in such proxy contest or (B) at the time of commencement of such tender offer or proxy contest, there are fewer than three Amberjack Designees serving on the Board of Directors of the Company, or (ii) a third party enters into an agreement with the Company shall invite contemplating the Investor to participate in such process on the terms and conditions generally made available to the other participants in such process; providedacquisition (by way of merger, however, that in the event the Investor participates in such process, each Investor Designee shall recuse himself tender offer or herself from voting on, or otherwise receiving any confidential information regarding, matters in connection with the process; provided, further, however, that, following the termination otherwise) of at least 50% of the Investor’s participation in any process, the Investor’s right to vote on, and receive confidential information about, the process shall be reinstated. In addition, if requested by the Board, the Investor may submit a confidential private acquisition proposal to the Board and respond to any related inquiries from the Board, provided that any such proposal shall be conditioned on approval outstanding capital stock of the BoardCompany or all or substantially all of the Company’s assets.
Appears in 1 contract
Samples: Merger Agreement (Dril-Quip Inc)
