Standstill; Voting; Other Matters. (a) During the Standstill Period (as such term is hereinafter defined), each of the Stockholders agrees that neither it nor any of its Affiliates or Associates, will in any manner, directly or indirectly, absent prior express invitation or authorization by the Board pursuant to a resolution of the Board: (i) effect or seek (including entering into any discussions, negotiations, agreements or understandings with any third person), offer or propose (whether publicly or otherwise) to effect, or cause or participate in, or in any way assist, facilitate, finance or encourage any other person to effect or seek, offer or propose (whether publicly or otherwise) to effect or participate in: (1) any acquisition of any securities (or beneficial ownership thereof), rights or options to acquire any securities (or beneficial ownership thereof) or any Derivative Instruments, or any assets or businesses, or any indebtedness or claims against any of the Company or any of its subsidiaries; provided that the Stockholders, together with their Affiliates and Associates, may acquire beneficial ownership of Shares if upon such acquisition the aggregate beneficial ownership of Shares by both Stockholders and their respective Affiliates and Associates would not at any time be in excess of 10% of the number of Shares that are then outstanding (as adjusted for any stock dividends, combinations, splits or recapitalizations); (2) any share repurchase, dividend, self-tender or other change in capitalization, change in management or material change in the business, tender offer or exchange offer, merger, amalgamation, acquisition, share exchange or business combination involving the Company or any of its subsidiaries, or any recapitalization, reorganization, restructuring, liquidation, disposition, dissolution or other extraordinary transaction with respect to the Company or any of its subsidiaries or joint ventures or any portion of its or their businesses or assets (other than participating in any such event referred to in clause (2) on the same basis as the other shareholders); (ii) seek to call, request the call of, or call or make application to a court or other person to call, order, requisition or administer, a special or other meeting of the shareholders of the Company, seek to make or make, present, conduct, participate or engage in any shareholder proposals of any kind or other type of referendum (binding or non-binding), including nominations for, elections of or removal of directors, for consideration at any annual or special meeting of shareholders, through action by written consent or otherwise, or seek to make or make, engage in or participate in any solicitation of proxies or consents or other authority to vote any securities of the Company with respect to nominations for, elections of or removal of directors or any other proposal or business (binding or non-binding) to be considered by the Company’s shareholders, whether at an annual or special meeting of shareholders, regarding the call of a special meeting of shareholders or through action by written consent or otherwise; (iii) encourage, advise or influence any other person or assist any person in so encouraging, assisting or influencing any person with respect to the giving or withholding of any proxy, consent or other authority to vote or in conducting any type of referendum (other than such encouragement, advice or influence that is consistent with the Board or Company management’s recommendation in connection with such matter); (iv) form or join in a partnership, limited partnership, syndicate or other group, including a group as defined under Section 13(d) of the Exchange Act or other applicable law, with respect to the Shares (for the avoidance of doubt, excluding any group comprised solely of the Stockholder Group and the Affiliates and Associates of either Stockholder), or otherwise support or participate in any effort by any person, with respect to the matters set forth in this Section 5, or deposit any Shares in a voting trust or subject any Shares to any voting agreement or other arrangement of similar effect or grant any proxy, consent or other authority to vote with respect to any matters (other than to the named proxies included in the Company’s proxy card for any annual or special meeting of shareholders or action by written consent) with respect to the Shares now or hereafter owned by the Stockholder Group or pursuant to this Agreement (excluding customary brokerage accounts, margin accounts, prime brokerage accounts and the like); (v) otherwise act, alone or in concert with others, to seek to control or influence the management, the Board or policies of the Company (provided that the foregoing shall not be deemed to restrict the Stockholder Group from having private discussions with management or the Board if such communications are not publicly disclosed and would not result in public disclosure by the Stockholder Group, or its Affiliates or Associates, or require public disclosure by the Company), or, except as provided by Section 3(c) hereof with respect to the search for the Additional Independent Director, initiate or take any action to obtain representation on the Board or alter the composition of the Board or management; (vi) other than in Rule 144-compliant open market broker sale transactions where the identity of the purchaser is not known and in underwritten public offerings with widely-dispersed distribution, sell, offer or agree to sell directly or indirectly, through swap or hedging transactions or otherwise, the securities of the Company or any rights decoupled from the underlying securities held by the Stockholder Group or any of the Affiliates or Associates of either Stockholder to any person or entity not a party to this Agreement (a “Third Party”) that to the Stockholder Group or the knowledge of the Affiliates or Associates of either Stockholder (after due inquiry in connection with a private, non-open market transaction, it being understood that such knowledge shall be deemed to exist with respect to any publicly available information, including information in documents filed with the SEC) would result in such Third Party, together with its Affiliates and Associates, owning, controlling or otherwise having any beneficial or other ownership interest in the aggregate of 5% or more of the Shares outstanding at such time or would increase the beneficial or other ownership interest of any Third Party who, together with its Affiliates and Associates, has a beneficial or other ownership interest in the aggregate of 5% or more of the Shares outstanding at such time, except in a transaction approved by the Board; (vii) make any request or demand or seek inspection, investigation or examination of any list or register of the Company’s shareholders or debtholders of any class or series, any other stocklist materials or of any other books or records of the Company or its Affiliates or make application or demand to a court or other person for an inspection, investigation or examination of the Company or its Affiliates or invoke any “oppression” or other remedy pursuant to any provision of applicable law, statute, the Company’s organizational documents or otherwise; (viii) institute, solicit, assist or join, as a party, any litigation, arbitration or other proceeding against or involving the Company or any of its current or former directors or officers (including derivative actions) other than to enforce the provisions of this Agreement against the Company; (ix) disclose that the Stockholder Group or the Affiliates or Associates of either Stockholder voted contrary to the recommendation of the Board on any matter other than as permitted by Section 4(b) hereof; (x) make, or cause to be made, or in any way encourage any other person to make or cause to be made, any statement, announcement or disclosure negatively commenting upon the Company or any of its Affiliates, including as to corporate strategy or policies, structure, business, corporate activities, management, the Board or individual members of management or the Board, including any former member of management or the Board (including through any press release or other publicly available format, the filing or furnishing of any document or report with any regulatory or governmental agency or stock exchange, any Internet posting, or any public or private disclosure to any journalist or member of the media (including in a television, radio, newspaper, online, magazine or other interview, regardless of format), shareholder, securities analyst or other person); provided, that the Stockholder Group shall not be deemed in breach of this clause (a)(x) by virtue of an unpremeditated, private, informal remark that is not part of any coordinated communication or campaign and is not intended or designed to circumvent, directly or indirectly, the restrictions contemplated by this Agreement (without giving effect to this proviso). The limitations set forth in this Section 4(a)(x) shall not prevent the Stockholder Group or any of its Affiliates or Associates from responding, after giving prior written notice to the Company a reasonable time in advance of any such response, to any statement made by the Company or any of its Affiliates or Associates of the nature described in Section 4(c) of this Agreement if such statement was made in breach of this Agreement; (xi) take any action which would, or would reasonably be expected to, result in the Company being required to make a public announcement; (xii) request any permission, waiver or amendment of any provision of this Agreement, disclose any intent, purpose, plan or proposal to obtain any such permission, waiver or amendment under this Agreement or bring any action or otherwise act to contest the validity of this Agreement or seek a release from the restrictions or obligations contained in this Agreement in each case in a manner that would result in public disclosure by the Stockholder Group, or the Affiliates or Associates of either Stockholder, or require public disclosure by the Company; or (xiii) enter into any discussions or arrangements with any person with respect to any of the foregoing or disclose publicly or privately in any manner any intention, plan or arrangement that is inconsistent with the foregoing. For the avoidance of doubt, each Stockholder shall cause its respective Affiliates and Associates to comply with the obligations under this Agreement and shall be liable for any failure to so comply by any of its respective Affiliates and Associates. (b) During the Standstill Period, each Stockholder shall cause all Shares beneficially owned, directly or indirectly, by it, or by any of its Affiliates or Associates (including all Shares beneficially owned as of the record dates for any annual or special meeting of shareholders or other action by shareholders, including through written consent) over which it exercises or has voting authority, to be present for quorum purposes and to be voted, at such meetings or other method for shareholder action or at any adjournments or postponements thereof, in favor of any and all directors nominated by the Board for election at such meetings and in accordance with the recommendation of the Board on any and all other proposals or other business that may come before any such shareholder meetings, whether or not proposed by the Company and whether or not binding, other than (w) approval of a shareholder rights plan, (x) amendments to the Company’s articles of incorporation or bylaws that diminish shareholder rights relative to the rights shareholders have with respect to the Company as of the date hereof (y) approval of sale or merger of the Company or (z) approval of any proposed stock issuances by the Company. (c) During the Standstill Period, neither the Company nor any of its Affiliates or Associates shall in any manner, directly or indirectly, make, or cause to be made, or in any way encourage any other person to make or cause to be made, any statement, announcement or disclosure negatively commenting upon the Stockholder Group or any of the Stockholder Group’s Affiliates or any of the Stockholder Group’s current or former partners, members or officers (including through any press release or other publicly available format, the filing or furnishing of any document or report with any regulatory or governmental agency or stock exchange, any Internet posting, or any public or private disclosure to any journalist or member of the media (including in a television, radio, newspaper, online, magazine or other interview, regardless of format), shareholder, securities analyst or other person); provided, that the Company shall not be deemed in breach of this Section 4(c) by virtue of an unpremeditated, private, informal remark that is not part of any coordinated communication or campaign and is not intended or designed to circumvent, directly or indirectly, the restrictions contemplated by this Section 4(c). The limitations set forth in this Section 4(c) shall not prevent the Company or any of its Affiliates or Associates, from responding, after giving prior written notice to the Stockholder Group a reasonable time in advance of any such response, to any statement made by the Stockholder Group or any of its Affiliates or Associates of the nature described in Section 4(a)(ix) or (x) of this Agreement if such statement was made in breach of this Agreement. (d) Effective upon execution of this Agreement, the Stockholder Group hereby irrevocably withdraws its Notice of Intent to Nominate for Election as Directors at the 2015 Annual Meeting of the Stockholders of Investment Technology Group, Inc., dated March 12, 2015.
Appears in 3 contracts
Samples: Cooperation Agreement (Philadelphia Financial Management of San Francisco, LLC), Cooperation Agreement (Voce Capital Management LLC), Cooperation Agreement (Investment Technology Group, Inc.)
Standstill; Voting; Other Matters. (a) During the Standstill Period (as such term is hereinafter defined), each of the Stockholders agrees that neither it nor any of its Affiliates or Associates, will in any manner, directly or indirectly, absent prior express invitation or authorization by the Board pursuant to a resolution of the Board:
(i) effect or seek (including entering into any discussions, negotiations, agreements or understandings with any third person), offer or propose (whether publicly or otherwise) to effect, or cause or participate in, or in any way assist, facilitate, finance or encourage any other person to effect or seek, offer or propose (whether publicly or otherwise) to effect or participate in: (1) any acquisition of any securities (or beneficial ownership thereof), rights or options to acquire any securities (or beneficial ownership thereof) or any Derivative Instruments, or any assets or businesses, or any indebtedness or claims against any of the Company or any of its subsidiaries; provided that the Stockholders, together with their Affiliates and Associates, may acquire beneficial ownership of Shares if upon such acquisition the aggregate beneficial ownership of Shares by both Stockholders and their respective Affiliates and Associates would not at any time be in excess of 10% of the number of Shares that are then outstanding (as adjusted for any stock dividends, combinations, splits or recapitalizations)) or require public disclosure otherwise prohibited by the terms of this Agreement; (2) any share repurchase, dividend, self-tender or other change in capitalization, change in management or material change in the business, tender offer or exchange offer, merger, amalgamation, acquisition, share exchange or business combination involving the Company or any of its subsidiaries, or any recapitalization, reorganization, restructuring, liquidation, disposition, dissolution or other extraordinary transaction with respect to the Company or any of its subsidiaries or joint ventures or any portion of its or their businesses or assets (other than participating in any such event referred to in clause (2) on the same basis as the other shareholders);
(ii) seek to call, request the call of, or call or make application to a court or other person to call, order, requisition or administer, a special or other meeting of the shareholders of the Company, seek to make or make, present, conduct, participate or engage in any shareholder proposals of any kind or other type of referendum (binding or non-binding), including nominations for, elections of or removal of directors, for consideration at any annual or special meeting of shareholders, through action by written consent or otherwise, or seek to make or make, engage in or participate in any solicitation of proxies or consents or other authority to vote any securities of the Company with respect to nominations for, elections of or removal of directors or any other proposal or business (binding or non-binding) to be considered by the Company’s shareholders, whether at an annual or special meeting of shareholders, regarding the call of a special meeting of shareholders or through action by written consent or otherwise;
(iii) encourage, advise or influence any other person or assist any person in so encouraging, assisting or influencing any person with respect to the giving or withholding of any proxy, consent or other authority to vote or in conducting any type of referendum (other than such encouragement, advice or influence that is consistent with the Board or Company management’s recommendation in connection with such matter);
(iv) form or join in a partnership, limited partnership, syndicate or other group, including a group as defined under Section 13(d) of the Exchange Act or other applicable law, with respect to the Shares (for the avoidance of doubt, excluding any group comprised solely of the Stockholder Group and the Affiliates and Associates of either StockholderStockholder so long as the existence, creation or re-formation of such group would not result in any public disclosure by the Stockholder Group, or its Affiliates or Associates, otherwise prohibited by the terms of this Agreement or require public disclosure by the Company), or otherwise support or participate in any effort by any person, with respect to the matters set forth in this Section 5, or deposit any Shares in a voting trust or subject any Shares to any voting agreement or other arrangement of similar effect or grant any proxy, consent or other authority to vote with respect to any matters (other than to the named proxies included in the Company’s proxy card for any annual or special meeting of shareholders or action by written consent) with respect to the Shares now or hereafter owned by the Stockholder Group or pursuant to this Agreement (excluding customary brokerage accounts, margin accounts, prime brokerage accounts and the like);
(v) otherwise act, alone or in concert with others, to seek to control or influence the management, the Board or policies of the Company (provided that the foregoing shall not be deemed to restrict the Stockholder Group from having private discussions with management or the Board if such communications are not publicly disclosed and would not result in public disclosure by the Stockholder Group, or its Affiliates or Associates, or require public disclosure by the Company), or, except as provided by Section 3(c) hereof with respect to the search for the Additional Independent Director, or initiate or take any action to obtain representation on the Board or alter the composition of the Board or management;
(vi) other than in Rule 144-compliant open market broker sale transactions where the identity of the purchaser is not known and in underwritten public offerings with widely-dispersed distribution, sell, offer or agree to sell directly or indirectly, through swap or hedging transactions or otherwise, the securities of the Company or any rights decoupled from the underlying securities held by the Stockholder Group or any of the Affiliates or Associates of either Stockholder to any person or entity not a party to this Agreement (a “Third Party”) that to the knowledge of the Stockholder Group or the knowledge of the Affiliates or Associates of either Stockholder (after due inquiry in connection with a private, non-open market transaction, it being understood that such knowledge shall be deemed to exist with respect to any publicly available information, including information in documents filed with the SEC) would result in such Third Party, together with its Affiliates and Associates, owning, controlling or otherwise having any beneficial or other ownership interest in the aggregate of 5% or more of the Shares outstanding at such time or would increase the beneficial or other ownership interest of any Third Party who, together with its Affiliates and Associates, has a beneficial or other ownership interest in the aggregate of 5% or more of the Shares outstanding at such time, except in a transaction approved by the Board;
(vii) make any request or demand or seek inspection, investigation or examination of any list or register of the Company’s shareholders or debtholders of any class or series, any other stocklist materials or of any other books or records of the Company or its Affiliates or make application or demand to a court or other person for an inspection, investigation or examination of the Company or its Affiliates or invoke any “oppression” or other remedy pursuant to any provision of applicable law, statute, the Company’s organizational documents or otherwise;
(viii) institute, solicit, assist or join, as a party, any litigation, arbitration or other proceeding against or involving the Company or any of its current or former directors or officers (including derivative actions) other than to enforce the provisions of this Agreement against the Company;
(ix) disclose that the Stockholder Group or the Affiliates or Associates of either Stockholder voted contrary to the recommendation of the Board on any matter other than as permitted by Section 4(b) hereof;
(x) make, or cause to be made, or in any way encourage any other person to make or cause to be made, any statement, announcement or disclosure negatively commenting upon the Company or any of its Affiliates, including as to corporate strategy or policies, structure, business, corporate activities, management, the Board or individual members of management or the Board, including any former member of management or the Board (including through any press release or other publicly available format, the filing or furnishing of any document or report with any regulatory or governmental agency or stock exchange, any Internet posting, or any public or private disclosure to any journalist or member of the media (including in a television, radio, newspaper, online, magazine or other interview, regardless of format), shareholder, securities analyst or other person); provided, that the Stockholder Group shall not be deemed in breach of this clause (a)(x) by virtue of an unpremeditated, private, informal remark that is not part of any coordinated communication or campaign and is not intended or designed to circumvent, directly or indirectly, the restrictions contemplated by this Agreement (without giving effect to this proviso). The limitations set forth in this Section 4(a)(x) shall not prevent the Stockholder Group or any of its Affiliates or Associates from responding, after giving prior written notice to the Company a reasonable time in advance of any such response, to any statement made by the Company or any of its Affiliates or Associates of the nature described in Section 4(c) of this Agreement if such statement was made in breach of this Agreement;
(xi) take any action which would, or would reasonably be expected to, result in the Company being required to make a public announcement;
(xii) request any permission, waiver or amendment of any provision of this Agreement, disclose any intent, purpose, plan or proposal to obtain any such permission, waiver or amendment under this Agreement or bring any action or otherwise act to contest the validity of this Agreement or seek a release from the restrictions or obligations contained in this Agreement in each case in a manner that would result in public disclosure by the Stockholder Group, or the Affiliates or Associates of either Stockholder, or require public disclosure by the Company; or
(xiii) enter into any discussions or arrangements with any person with respect to any of the foregoing or disclose publicly or privately in any manner any intention, plan or arrangement that is inconsistent with the foregoing. For the avoidance of doubt, each Stockholder shall cause its respective Affiliates and Associates to comply with the obligations under this Agreement and shall be liable for any failure to so comply by any of its respective Affiliates and Associates.
(b) During the Standstill Period, each Stockholder shall cause all Shares beneficially owned, directly or indirectly, by it, or by any of its Affiliates or Associates (including all Shares beneficially owned as of the record dates for any annual or special meeting of shareholders or other action by shareholders, including through written consent) over which it exercises or has voting authority, to be present for quorum purposes and to be voted, at such meetings or other method for shareholder action or at any adjournments or postponements thereof, in favor of any and all directors nominated by the Board for election at such meetings and in accordance with the recommendation of the Board on any and all other proposals or other business that may come before any such shareholder meetings, whether or not proposed by the Company and whether or not binding, other than (w) approval of a shareholder rights plan, (x) amendments to the Company’s articles of incorporation or bylaws that diminish shareholder rights relative to the rights shareholders have with respect to the Company as of the date hereof (y) approval of sale or merger of the Company or (z) approval of any proposed stock issuances by the Company.
(c) During the Standstill Period, neither the Company nor any of its Affiliates or Associates shall in any manner, directly or indirectly, make, or cause to be made, or in any way encourage any other person to make or cause to be made, any statement, announcement or disclosure negatively commenting upon the Stockholder Group or any of the Stockholder Group’s Affiliates or any of the Stockholder Group’s current or former partners, members or officers (including through any press release or other publicly available format, the filing or furnishing of any document or report with any regulatory or governmental agency or stock exchange, any Internet posting, or any public or private disclosure to any journalist or member of the media (including in a television, radio, newspaper, online, magazine or other interview, regardless of format), shareholder, securities analyst or other person); provided, that the Company shall not be deemed in breach of this Section 4(c) by virtue of an unpremeditated, private, informal remark that is not part of any coordinated communication or campaign and is not intended or designed to circumvent, directly or indirectly, the restrictions contemplated by this Section 4(c). The limitations set forth in this Section 4(c) shall not prevent the Company or any of its Affiliates or Associates, from responding, after giving prior written notice to the Stockholder Group a reasonable time in advance of any such response, to any statement made by the Stockholder Group or any of its Affiliates or Associates of the nature described in Section 4(a)(ix) or (x) of this Agreement if such statement was made in breach of this Agreement.
(d) Effective upon execution The Stockholder Group, and each of them, hereby confirm and agree that neither it nor any of them or their Affiliates or Associates has provided, and pursuant to this AgreementAgreement shall not provide, the Stockholder Group hereby irrevocably withdraws its Notice any notice of Intent an intent to Nominate nominate directors for Election as Directors election or propose other business at the 2015 2016 Annual Meeting of the Stockholders of Investment Technology Group, Inc., dated March 12, 2015.
Appears in 2 contracts
Samples: Cooperation Agreement (Voce Capital Management LLC), Cooperation Agreement (Investment Technology Group, Inc.)
Standstill; Voting; Other Matters. (a) During the Standstill Period (as such term is hereinafter defined)Period, each of the Stockholders agrees that neither it nor any of its Affiliates or Associates, XXXX will not in any manner, and shall cause its Affiliates and Associates to not, directly or indirectly, absent prior express invitation or authorization by the Board pursuant to a resolution of the Board:
(i) effect or seek (including entering into any discussions, negotiations, agreements or understandings with any third person), offer or propose (whether publicly or otherwise) to effect, or cause or participate in, or in any way assist, facilitate, finance or encourage any other person to effect or seek, offer or propose (whether publicly or otherwise) to effect or participate in: (1) any acquisition of any securities (or beneficial ownership thereof), rights or options to acquire any securities (or beneficial ownership thereof) or any Derivative Instruments, or any assets or businesses, or any indebtedness or claims against any of the Company or any of its subsidiaries; provided that the StockholdersXXXX, together with their its Affiliates and Associates, may acquire beneficial ownership of Shares if upon such acquisition the aggregate beneficial ownership of Shares by both Stockholders XXXX and their respective its Affiliates and Associates would not at any time be in excess of 1012% of the number of Shares that are then outstanding (as adjusted for any stock dividends, combinations, splits splits, recapitalizations and the like, including giving effect to any conversion or recapitalizationsexchange of Shares occurring as a result of the Redomicile Transaction); or (2) any share repurchase, dividend, self-tender or other change in capitalization, change in management or material change in the business, tender offer or exchange offer, merger, amalgamation, acquisition, share exchange or business combination involving the Company or any of its subsidiaries, or any recapitalization, reorganization, restructuring, liquidation, disposition, dissolution or other extraordinary transaction with respect to the Company or any of its subsidiaries or joint ventures or any portion of its or their businesses or assets (other than participating in any such event referred to in clause (2) on the same basis as the other shareholders);
(ii) seek to call, request the call of, or call or make application to a court or other person to call, order, requisition or administer, a special or other meeting of the shareholders of the Company, seek to make or make, present, conduct, participate or engage in any shareholder proposals of any kind or other type of referendum (binding or non-binding), including nominations for, elections of or removal of directors, for consideration at any annual or special meeting of shareholders, through action by written consent or otherwise, or seek to make or make, engage in or participate in any solicitation of proxies or consents or other authority to vote any securities of the Company with respect to nominations for, elections of or removal of directors or any other proposal or business (binding or non-binding) to be considered by the Company’s shareholders, whether at an annual or special meeting of shareholders, regarding the call of a special meeting of shareholders or through action by written consent or otherwise;
(iii) encourage, advise or influence any other person or assist any person in so encouraging, assisting or influencing any person with respect to the giving or withholding of any proxy, consent or other authority to vote or in conducting any type of referendum (other than such encouragement, advice or influence that is consistent with the Board or Company management’s recommendation in connection with such matter);
(iv) form or join in a partnership, limited partnership, syndicate or other group, including a group as defined under Section 13(d) of the Exchange Act or other applicable law, with respect to the Shares (for the avoidance of doubt, excluding any group comprised solely of the Stockholder Group and the XXXX, its Affiliates and Associates of either StockholderAssociates), or otherwise support or participate in any effort by any person, with respect to the matters set forth in this Section 5, or deposit any Shares in a voting trust or subject any Shares to any voting agreement or other arrangement of similar effect or grant any proxy, consent or other authority to vote with respect to any matters (other than to the named proxies included in the Company’s proxy card for any annual or special meeting of shareholders or action by written consent) with respect to the Shares now or hereafter owned by the Stockholder Group XXXX or pursuant to this Agreement (excluding customary brokerage accounts, margin accounts, prime brokerage accounts and the like);
(v) otherwise act, alone or in concert with others, to seek to control or influence the management, the Board board of directors or policies of the Company (provided that the foregoing shall not be deemed to restrict the Stockholder Group XXXX from having private discussions communications (other than letters addressed (or copied) to the board of directors or subset thereof or to management with a request that it be sent to the directors) with management or the Board board of directors if such communications are not publicly disclosed and would not reasonably require or result in public disclosure by the Stockholder GroupXXXX, or its Affiliates or Associates, or require public disclosure by the Company), or, except as provided by Section 3(c) hereof with respect to the search determining a substitute independent director for the Additional Independent Directora New Nominee, initiate or take any action to obtain representation on the Board or alter the composition of the Board or management;
(vi) other than in Rule 144-compliant open market broker sale transactions where the identity of the purchaser is not known and in underwritten public offerings with widely-dispersed distribution, sell, offer or agree to sell directly or indirectly, through swap or hedging transactions or otherwise, the securities of the Company or any rights decoupled from the underlying securities held by the Stockholder Group XXXX or any of the its Affiliates or Associates of either Stockholder to any person or entity not a party to this Agreement (a “Third Party”) that to the Stockholder Group JANA’s or the its Affiliate’s or Associate’s knowledge of the Affiliates or Associates of either Stockholder (after due inquiry in connection with a private, non-open market transaction, it being understood that such knowledge shall be deemed to exist with respect to any publicly available information, including information in documents filed with the SEC) would result in such Third Party, together with its Affiliates and Associates, owning, controlling or otherwise having any beneficial or other ownership interest in the aggregate of 5% or more of the Shares outstanding at such time or would increase the beneficial or other ownership interest of any Third Party who, together with its Affiliates and Associates, has a beneficial or other ownership interest in the aggregate of 5% or more of the Shares outstanding at such time, except in a transaction approved by the Board;
(vii) make any request or demand or seek inspection, investigation or examination of any list or register of the Company’s shareholders or debtholders of any class or series, any other stocklist materials or of any other books or records of the Company or its Affiliates or make application or demand to a court or other person for an inspection, investigation or examination of the Company or its Affiliates or invoke any “oppression” or other remedy pursuant to any provision of applicable law, statute, the Company’s organizational documents or otherwise;
(viii) institute, solicit, assist or join, as a party, any litigation, arbitration or other proceeding against or involving the Company or any of its current or former directors or officers (including derivative actions) other than to enforce the provisions of this Agreement against the Company;
(ix) disclose that the Stockholder Group or the Affiliates or Associates of either Stockholder voted contrary to the recommendation of the Board on any matter other than as permitted by Section 4(b) hereof;
(x) make, or cause to be made, or in any way encourage any other person to make or cause to be made, any statement, announcement or disclosure negatively commenting upon the Company or any of its Affiliates, including as to corporate strategy or policies, structure, business, corporate activities, management, the Board or individual members of management or the Board, including any former member of management or the Board (including through any press release or other publicly available format, the filing or furnishing of any document or report with any regulatory or governmental agency or stock exchange, any Internet posting, or any public or private disclosure to any journalist or member of the media (including in a television, radio, newspaper, online, magazine or other interview, regardless of format), shareholder, securities analyst or other person); provided, that the Stockholder Group XXXX shall not be deemed in breach of this clause (a)(xa)(ix) by virtue of an unpremeditated, private, informal remark that is not part of any coordinated communication or campaign and is not intended or designed to circumvent, directly or indirectly, the restrictions contemplated by this Agreement (without giving effect to this proviso). The limitations set forth in this Section 4(a)(x5(a)(ix) shall not prevent the Stockholder Group XXXX or any of its Affiliates or Associates from responding, after giving prior written notice to the Company a reasonable time in advance of any such response, to any statement made by the Company or any of its Affiliates or Associates of the nature described in Section 4(c5(c) of this Agreement if such statement was made in breach of this Agreement;
(xix) take any action which would, or would reasonably be expected to, result in the Company being required having to make a public announcement;
(xiixi) request any permission, waiver or amendment of any provision of this Agreement, disclose any intent, purpose, plan or proposal to obtain any such permission, waiver or amendment under this Agreement or bring any action or otherwise act to contest the validity of this Agreement or seek a release from the restrictions or obligations contained in this Agreement in each case in a manner that would reasonably require or result in public disclosure by the Stockholder GroupXXXX, its Affiliates or Associates, or the Affiliates or Associates of either Stockholder, or require public disclosure by the Company; or
(xiiixii) enter into any discussions or arrangements with any person with respect to any of the foregoing or disclose publicly or privately in any manner any intention, plan or arrangement that is inconsistent with the foregoing. For the avoidance of doubt, each Stockholder shall cause its respective Affiliates and Associates to comply with the obligations under this Agreement and shall be liable for any failure to so comply by any of its respective Affiliates and Associates.
(b) During the Standstill Period, each Stockholder XXXX shall cause all Shares beneficially owned, directly or indirectly, by it, or by any of its Affiliates or Associates (including all Shares beneficially owned as of the record dates for any annual or special meeting of shareholders or other action by shareholders, including through written consent) over which it exercises or has voting authority, to be present for quorum purposes and to be voted, at such meetings or other method for shareholder action or at any adjournments or postponements thereof, in favor of any and all directors nominated by the Board for election at such meetings and in accordance with the recommendation of the Board on any and all other proposals or other business that may come before any such shareholder meetings, whether or not proposed by the Company and whether or not bindingbinding (including for the avoidance of doubt any proposal relating to a re-domiciling of the Company to Canada and proposals, including any charter or bylaw provisions, designed to replicate any of the currently existing aspects of the Company’s corporate governance structure, including as set forth in the Company’s organizational documents and applicable law, including its charter and bylaws (collectively, the “Redomiciling Proposal and Related Matters”), other than than, except in each case for the Redomiciling Proposal and Related Matters, (w) approval of a shareholder rights plan, (x) amendments to the Company’s articles of incorporation or bylaws that diminish shareholder rights relative to the rights shareholders have with respect to the Company as of the date hereof hereof, (y) approval of sale or merger of the Company Extraordinary Matters or (z) approval of new or amended equity incentive compensation plans submitted for shareholder approval). During the Standstill Period, XXXX further agrees not to, and shall cause its Affiliates and Associates not to, directly or indirectly and in any proposed stock issuances manner, (A) submit any proposal for consideration by, or bring any other business before, the shareholders or initiate, encourage or participate in any “withhold” or similar campaign against the Company or its directors or management, (B) make, or cause to be made, any statement, announcement or public filing with respect to any proposal or matter to be considered by the Companyshareholders, whether at any annual or special meeting of shareholders or with respect to any request or call for a special meeting or otherwise, which statement, announcement or public filing is inconsistent with the recommendation by the Board, and (C) publicly or privately encourage or support any shareholder or other person to take any of the actions in the foregoing clauses (A)-(B) or any of the actions addressed in Section 5(a).
(c) During the Standstill Period, neither the Company nor any of its Affiliates or Associates shall in any manner, directly or indirectly, make, or cause to be made, or in any way encourage any other person to make or cause to be made, any statement, announcement or disclosure negatively commenting upon the Stockholder Group any New Nominee, XXXX or any of the Stockholder GroupJANA’s Affiliates or any of the Stockholder GroupJANA’s current or former partners, members or officers (including through any press release or other publicly available format, the filing or furnishing of any document or report with any regulatory or governmental agency or stock exchange, any Internet posting, or any public or private disclosure to any journalist or member of the media (including in a television, radio, newspaper, online, magazine or other interview, regardless of format), shareholder, securities analyst or other person); provided, that the Company shall not be deemed in breach of this Section 4(c5(c) by virtue of an unpremeditated, private, informal remark that is not part of any coordinated communication or campaign and is not intended or designed to circumvent, directly or indirectly, the restrictions contemplated by this Section 4(c5(c). The limitations set forth in this Section 4(c5(c) shall not prevent the Company or any of its Affiliates or Associates, from responding, after giving prior written notice to the Stockholder Group XXXX a reasonable time in advance of any such response, to any statement made by the Stockholder Group XXXX or any of its Affiliates or Associates of the nature described in Section 4(a)(ix) or (x5(a)(ix) of this Agreement if such statement was made in breach of this Agreement.
(d) Effective upon execution of this Agreement, the Stockholder Group hereby irrevocably withdraws its Notice of Intent to Nominate for Election as Directors at the 2015 Annual Meeting of the Stockholders of Investment Technology Group, Inc., dated March 12, 2015.
Appears in 1 contract
Samples: Nomination and Support Agreement (Jana Partners LLC)
Standstill; Voting; Other Matters. (a) During the Standstill Period (as such term is hereinafter defined), each of the Stockholders Voce agrees that neither it nor any of its Affiliates or AssociatesAssociates will, will in any manner, directly or indirectly, absent prior express invitation or authorization by the Board pursuant to a resolution of the Board:
(i) effect or seek (including entering into any discussions, negotiations, agreements or understandings with any third person), offer or propose (whether publicly or otherwise) to effect, or cause or participate in, or in any way assist, facilitate, finance or encourage any other person to effect or seek, offer or propose (whether publicly or otherwise) to effect or participate in: (1) any acquisition of any securities (or beneficial ownership thereof), rights or options to acquire any securities (or beneficial ownership thereof) or any Derivative Instruments, or any assets or businesses, or any indebtedness or claims against any of the Company or any of its subsidiaries; provided that the Stockholders, together with their Affiliates and Associates, may acquire beneficial ownership of Shares if upon such acquisition the aggregate beneficial ownership of Shares by both Stockholders and their respective Affiliates and Associates would not at any time be in excess of 10% of the number of Shares that are then outstanding (as adjusted for any stock dividends, combinations, splits or recapitalizations); (2) any share repurchase, dividend, self-tender or other change in capitalization, change in management or material change in the business, tender offer or exchange offer, merger, amalgamation, acquisition, share exchange or business combination involving the Company or any of its subsidiaries, or any recapitalization, reorganization, restructuring, liquidation, disposition, dissolution or other extraordinary transaction with respect to the Company or any of its subsidiaries or joint ventures or any portion of its or their businesses or assets (other than participating in any such event referred to in clause (2) herein on the same basis as the Company’s other shareholdersstockholders);
(ii) seek to call, request the call of, or call or make application to a court or other person to call, order, requisition or administer, a special or other meeting of the shareholders stockholders of the Company, seek to make or make, present, conduct, participate or engage in any shareholder stockholder proposals of any kind or other type of referendum (binding or non-binding), including nominations for, elections of or removal of directorsdirectors (in furtherance of a “contested solicitation” or not), for consideration at any annual or special meeting of shareholdersstockholders, through action by written consent or otherwise, or seek to make or make, engage in or participate in any solicitation of proxies or consents or other authority to vote any securities of the Company with respect to nominations for, elections of or removal of directors or any other proposal or business (binding or non-binding) to be considered by the Company’s shareholdersstockholders, whether at an annual or special meeting of shareholdersstockholders, regarding the call of a special meeting of shareholders stockholders or through action by written consent or otherwise;
(iii) encourage, advise or influence any other person or assist any person in so encouraging, assisting advising or influencing any person with respect to the giving or withholding of any proxy, consent or other authority to vote or in conducting any type of referendum (other than such encouragement, advice or influence that is consistent with the Board or Company management’s recommendation in connection with such matter);
(iv) form or join in a partnership, limited partnership, syndicate or other group, including a group (as defined under Section 13(d) of the Exchange Act or other applicable law, ) with any person with respect to the Shares (for the avoidance of doubt, excluding any group comprised solely of the Stockholder Group and the Affiliates and Associates of either Stockholder)Shares, or otherwise support or participate in any effort by any person, with respect to the matters set forth in this Section 54, or deposit any Shares in a voting trust or subject any Shares to any voting agreement or other arrangement of similar effect or grant any proxy, consent or other authority to vote with respect to any matters (other than to the named proxies included in the Company’s proxy card for any annual or special meeting of shareholders stockholders or action by written consent) with respect to the Shares now or hereafter owned by the Stockholder Group Voce or pursuant to this Agreement (excluding customary brokerage accounts, margin accounts, prime brokerage accounts and the like);
(v) otherwise act, alone or in concert with others, to seek to control or influence the management, the Board or policies of the Company Company, or initiate or take any action to obtain representation on the Board or alter the composition of the Board or management (provided that the foregoing shall not be deemed to restrict the Stockholder Group Voce from having private discussions with management or the Board if such communications are not publicly disclosed and would not result in public disclosure by the Stockholder GroupVoce, or its Affiliates or Associates, or reasonably be expected to require public disclosure by the Company), or, except as provided by Section 3(c) hereof with respect to the search for the Additional Independent Director, initiate or take any action to obtain representation on the Board or alter the composition of the Board or management;
(vi) other than in Rule 144-compliant open market broker sale transactions where the identity of the purchaser is not known and in underwritten public offerings with widely-dispersed distribution, sell, offer or agree to sell directly or indirectly, through swap or hedging transactions or otherwise, the securities of the Company or any rights decoupled from the underlying securities held by the Stockholder Group or any of the Affiliates or Associates of either Stockholder to any person or entity not a party to this Agreement (a “Third Party”) that to the Stockholder Group or the knowledge of the Affiliates or Associates of either Stockholder (after due inquiry in connection with a private, non-open market transaction, it being understood that such knowledge shall be deemed to exist with respect to any publicly available information, including information in documents filed with the SEC) would result in such Third Party, together with its Affiliates and Associates, owning, controlling or otherwise having any beneficial or other ownership interest in the aggregate of 5% or more of the Shares outstanding at such time or would increase the beneficial or other ownership interest of any Third Party who, together with its Affiliates and Associates, has a beneficial or other ownership interest in the aggregate of 5% or more of the Shares outstanding at such time, except in a transaction approved by the Board;
(vii) make any request or demand or seek inspection, investigation or examination of any list or register of the Company’s shareholders stockholders or debtholders of any class or series, any other stocklist stock list materials or of any other books or records of the Company or its Affiliates or make application or demand to a court or other person for an inspection, investigation or examination of the Company or its Affiliates or invoke any “oppression” or other remedy pursuant to any provision of applicable law, statute, the Company’s organizational documents or otherwise;
(viiivii) institute, solicit, assist or join, as a party, any litigation, arbitration or other proceeding against or involving the Company or any of its current or former directors or officers (including derivative actions) other than to enforce the provisions of this Agreement against the Company;
(ix) disclose that the Stockholder Group or the Affiliates or Associates of either Stockholder voted contrary to the recommendation of the Board on any matter other than as permitted by Section 4(b) hereof;
(xviii) make, or cause to be made, or in any way encourage any other person to make or cause to be made, any statement, announcement or disclosure that disparages, defames or slanders, negatively commenting comments upon or otherwise constitutes an ad hominem attack on the Company or any of its Affiliates, including as to corporate strategy or policies, structure, business, corporate activities, management, the Board or individual members of management or the Board, including any former member of management or the Board (including through any press release or other publicly available format, the filing or furnishing of any document or report with any regulatory or governmental agency or stock exchange, any Internet posting, or any public or private disclosure to any journalist or member of the media (including in a television, radio, newspaper, online, magazine or other interview, regardless of format), shareholderstockholder, securities analyst or other person); provided, that the Stockholder Group Voce or any of its Affiliates or Associates shall not be deemed in breach of this clause (a)(xa)(viii) by virtue of an unpremeditated, private, informal remark that is not part of any coordinated communication or campaign and is not intended or designed to circumvent, directly or indirectly, the restrictions contemplated by this Agreement (without giving effect to this proviso). The ; the limitations set forth in this Section 4(a)(x4(a)(viii) shall not prevent the Stockholder Group Voce or any of its Affiliates or Associates from responding, after giving prior written notice to the Company a reasonable time in advance of any such response, to any statement made by the Company or any of its Affiliates or Associates of the nature described in Section 4(c4(d) of this Agreement if such statement was made in breach of this Agreement;
(xiix) take any action which would, or would reasonably be expected to, result in the Company being required to make a public announcement;
(xiix) request any permission, waiver or amendment of any provision of this Agreement, disclose any intent, purpose, plan or proposal to obtain any such permission, waiver or amendment under this Agreement or bring any action or otherwise act to contest the validity of this Agreement or seek a release from the restrictions or obligations contained in this Agreement in each case in a manner that would result in public disclosure by the Stockholder GroupVoce, or the its Affiliates or Associates of either StockholderAssociates, or require public disclosure by the Company; or
(xiiixi) enter into any discussions or arrangements with any person with respect to any of the foregoing or disclose publicly or privately in any manner any intention, plan or arrangement that is inconsistent with the foregoing. For the avoidance of doubt, each Stockholder Voce shall cause its respective Affiliates and Associates to comply with the obligations under this the Agreement and shall be liable for any failure to so comply by any of its respective Affiliates and Associates.
(b) During the Standstill Period, each Stockholder Voce shall cause all Shares shares of common stock, par value $0.05 per share, of the Company (“Shares”) beneficially owned, directly or indirectly, by it, or by any of its Affiliates or Associates (including all Shares beneficially owned as of the record dates for any annual or special meeting of shareholders stockholders or other action by shareholdersstockholders, including through written consent) over which it exercises or has voting authority, to be present for quorum purposes and to be voted, at such meetings or other method for shareholder stockholder action or at any adjournments or postponements thereof, in favor of any and all directors nominated by the Board for election at such meetings and in accordance with the recommendation of the Board on any and all other proposals or other business that may come before any such shareholder stockholder meetings, whether or not proposed by the Company and whether or not binding, other than (w) approval of a shareholder rights plan, (x) amendments to the Company’s articles of incorporation or bylaws that diminish shareholder rights relative to the rights shareholders have with respect to the Company as of the date hereof hereof, (y) approval of a sale or merger of the Company or (z) approval of any proposed stock issuances by the Company.
(c) Effective upon execution of this Agreement, Voce hereby irrevocably withdraws its Notice of Intent to Nominate Candidates for Election as Directors at the 2018 Annual Meeting, dated August 30, 2017.
(d) During the Standstill Period, neither the Company nor any of its Affiliates or Associates shall in any manner, directly or indirectly, make, or cause to be made, or in any way encourage any other person to make or cause to be made, any statement, announcement or disclosure that disparages, defames or slanders, negatively commenting comments upon or otherwise constitutes an ad hominem attack on the Stockholder Group New Director, Voce, any Affiliate or Associate of Voce, or any of the Stockholder Group’s Affiliates their successors, members, officers, directors or any of the Stockholder Group’s current or former partners, members or officers employees (including through any press release or other publicly available format, the filing or furnishing of any document or report with any regulatory or governmental agency or stock exchange, any Internet posting, or any public or private disclosure to any journalist or member of the media (including in a television, radio, newspaper, online, magazine or other interview, regardless of format), shareholderstockholder, securities analyst or other person); provided, that the Company and any of its Affiliates or Associates shall not be deemed in breach of this Section 4(c4(d) by virtue of an unpremeditated, private, informal remark that is not part of any coordinated communication or campaign and is not intended or designed to circumvent, directly or indirectly, the restrictions contemplated by this Section 4(c4(d). The limitations set forth in this Section 4(c4(d) shall not prevent the Company or any of its Affiliates or Associates, Associates from responding, after giving prior written notice to the Stockholder Group Voce a reasonable time in advance of any such response, to any statement made by the Stockholder Group Voce or any of its Affiliates or Associates of the nature described in Section 4(a)(ix4(a)(viii) or (x) of this Agreement if such statement was made in breach of this Agreement.
(d) Effective upon execution of this Agreement, the Stockholder Group hereby irrevocably withdraws its Notice of Intent to Nominate for Election as Directors at the 2015 Annual Meeting of the Stockholders of Investment Technology Group, Inc., dated March 12, 2015.
Appears in 1 contract
Standstill; Voting; Other Matters. (a) During the Standstill Period (as such term is hereinafter defined)Period, each of the Stockholders agrees that neither it nor any of its Affiliates or Associates, JXXX will not in any manner, and shall cause its Affiliates and Associates to not, directly or indirectly, absent prior express invitation or authorization by the Board pursuant to a resolution of the Board:
(i) effect or seek (including entering into any discussions, negotiations, agreements or understandings with any third person), offer or propose (whether publicly or otherwise) to effect, or cause or participate in, or in any way assist, facilitate, finance or encourage any other person to effect or seek, offer or propose (whether publicly or otherwise) to effect or participate in: (1) any acquisition of any securities (or beneficial ownership thereof), rights or options to acquire any securities (or beneficial ownership thereof) or any Derivative Instruments, or any assets or businesses, or any indebtedness or claims against any of the Company or any of its subsidiaries; provided that the StockholdersJXXX, together with their its Affiliates and Associates, may acquire beneficial ownership of Shares if upon such acquisition the aggregate beneficial ownership of Shares by both Stockholders JXXX and their respective its Affiliates and Associates would not at any time be in excess of 1012% of the number of Shares that are then outstanding (as adjusted for any stock dividends, combinations, splits splits, recapitalizations and the like, including giving effect to any conversion or recapitalizationsexchange of Shares occurring as a result of the Redomicile Transaction); or (2) any share repurchase, dividend, self-tender or other change in capitalization, change in management or material change in the business, tender offer or exchange offer, merger, amalgamation, acquisition, share exchange or business combination involving the Company or any of its subsidiaries, or any recapitalization, reorganization, restructuring, liquidation, disposition, dissolution or other extraordinary transaction with respect to the Company or any of its subsidiaries or joint ventures or any portion of its or their businesses or assets (other than participating in any such event referred to in clause (2) on the same basis as the other shareholders);
(ii) seek to call, request the call of, or call or make application to a court or other person to call, order, requisition or administer, a special or other meeting of the shareholders of the Company, seek to make or make, present, conduct, participate or engage in any shareholder proposals of any kind or other type of referendum (binding or non-binding), including nominations for, elections of or removal of directors, for consideration at any annual or special meeting of shareholders, through action by written consent or otherwise, or seek to make or make, engage in or participate in any solicitation of proxies or consents or other authority to vote any securities of the Company with respect to nominations for, elections of or removal of directors or any other proposal or business (binding or non-binding) to be considered by the Company’s shareholders, whether at an annual or special meeting of shareholders, regarding the call of a special meeting of shareholders or through action by written consent or otherwise;
(iii) encourage, advise or influence any other person or assist any person in so encouraging, assisting or influencing any person with respect to the giving or withholding of any proxy, consent or other authority to vote or in conducting any type of referendum (other than such encouragement, advice or influence that is consistent with the Board or Company management’s recommendation in connection with such matter);
(iv) form or join in a partnership, limited partnership, syndicate or other group, including a group as defined under Section 13(d) of the Exchange Act or other applicable law, with respect to the Shares (for the avoidance of doubt, excluding any group comprised solely of the Stockholder Group and the JXXX, its Affiliates and Associates of either StockholderAssociates), or otherwise support or participate in any effort by any person, with respect to the matters set forth in this Section 5, or deposit any Shares in a voting trust or subject any Shares to any voting agreement or other arrangement of similar effect or grant any proxy, consent or other authority to vote with respect to any matters (other than to the named proxies included in the Company’s proxy card for any annual or special meeting of shareholders or action by written consent) with respect to the Shares now or hereafter owned by the Stockholder Group JXXX or pursuant to this Agreement (excluding customary brokerage accounts, margin accounts, prime brokerage accounts and the like);
(v) otherwise act, alone or in concert with others, to seek to control or influence the management, the Board board of directors or policies of the Company (provided that the foregoing shall not be deemed to restrict the Stockholder Group JXXX from having private discussions communications (other than letters addressed (or copied) to the board of directors or subset thereof or to management with a request that it be sent to the directors) with management or the Board board of directors if such communications are not publicly disclosed and would not reasonably require or result in public disclosure by the Stockholder GroupJXXX, or its Affiliates or Associates, or require public disclosure by the Company), or, except as provided by Section 3(c) hereof with respect to the search determining a substitute independent director for the Additional Independent Directora New Nominee, initiate or take any action to obtain representation on the Board or alter the composition of the Board or management;
(vi) other than in Rule 144-compliant open market broker sale transactions where the identity of the purchaser is not known and in underwritten public offerings with widely-dispersed distribution, sell, offer or agree to sell directly or indirectly, through swap or hedging transactions or otherwise, the securities of the Company or any rights decoupled from the underlying securities held by the Stockholder Group JXXX or any of the its Affiliates or Associates of either Stockholder to any person or entity not a party to this Agreement (a “Third Party”) that to the Stockholder Group JANA’s or the its Affiliate’s or Associate’s knowledge of the Affiliates or Associates of either Stockholder (after due inquiry in connection with a private, non-open market transaction, it being understood that such knowledge shall be deemed to exist with respect to any publicly available information, including information in documents filed with the SEC) would result in such Third Party, together with its Affiliates and Associates, owning, controlling or otherwise having any beneficial or other ownership interest in the aggregate of 5% or more of the Shares outstanding at such time or would increase the beneficial or other ownership interest of any Third Party who, together with its Affiliates and Associates, has a beneficial or other ownership interest in the aggregate of 5% or more of the Shares outstanding at such time, except in a transaction approved by the Board;
(vii) make any request or demand or seek inspection, investigation or examination of any list or register of the Company’s shareholders or debtholders of any class or series, any other stocklist materials or of any other books or records of the Company or its Affiliates or make application or demand to a court or other person for an inspection, investigation or examination of the Company or its Affiliates or invoke any “oppression” or other remedy pursuant to any provision of applicable law, statute, the Company’s organizational documents or otherwise;
(viii) institute, solicit, assist or join, as a party, any litigation, arbitration or other proceeding against or involving the Company or any of its current or former directors or officers (including derivative actions) other than to enforce the provisions of this Agreement against the Company;
(ix) disclose that the Stockholder Group or the Affiliates or Associates of either Stockholder voted contrary to the recommendation of the Board on any matter other than as permitted by Section 4(b) hereof;
(x) make, or cause to be made, or in any way encourage any other person to make or cause to be made, any statement, announcement or disclosure negatively commenting upon the Company or any of its Affiliates, including as to corporate strategy or policies, structure, business, corporate activities, management, the Board or individual members of management or the Board, including any former member of management or the Board (including through any press release or other publicly available format, the filing or furnishing of any document or report with any regulatory or governmental agency or stock exchange, any Internet posting, or any public or private disclosure to any journalist or member of the media (including in a television, radio, newspaper, online, magazine or other interview, regardless of format), shareholder, securities analyst or other person); provided, that the Stockholder Group JXXX shall not be deemed in breach of this clause (a)(xa)(ix) by virtue of an unpremeditated, private, informal remark that is not part of any coordinated communication or campaign and is not intended or designed to circumvent, directly or indirectly, the restrictions contemplated by this Agreement (without giving effect to this proviso). The limitations set forth in this Section 4(a)(x5(a)(ix) shall not prevent the Stockholder Group JXXX or any of its Affiliates or Associates from responding, after giving prior written notice to the Company a reasonable time in advance of any such response, to any statement made by the Company or any of its Affiliates or Associates of the nature described in Section 4(c5(c) of this Agreement if such statement was made in breach of this Agreement;
(xix) take any action which would, or would reasonably be expected to, result in the Company being required having to make a public announcement;
(xiixi) request any permission, waiver or amendment of any provision of this Agreement, disclose any intent, purpose, plan or proposal to obtain any such permission, waiver or amendment under this Agreement or bring any action or otherwise act to contest the validity of this Agreement or seek a release from the restrictions or obligations contained in this Agreement in each case in a manner that would reasonably require or result in public disclosure by the Stockholder GroupJXXX, its Affiliates or Associates, or the Affiliates or Associates of either Stockholder, or require public disclosure by the Company; or
(xiiixii) enter into any discussions or arrangements with any person with respect to any of the foregoing or disclose publicly or privately in any manner any intention, plan or arrangement that is inconsistent with the foregoing. For the avoidance of doubt, each Stockholder shall cause its respective Affiliates and Associates to comply with the obligations under this Agreement and shall be liable for any failure to so comply by any of its respective Affiliates and Associates.
(b) During the Standstill Period, each Stockholder JXXX shall cause all Shares beneficially owned, directly or indirectly, by it, or by any of its Affiliates or Associates (including all Shares beneficially owned as of the record dates for any annual or special meeting of shareholders or other action by shareholders, including through written consent) over which it exercises or has voting authority, to be present for quorum purposes and to be voted, at such meetings or other method for shareholder action or at any adjournments or postponements thereof, in favor of any and all directors nominated by the Board for election at such meetings and in accordance with the recommendation of the Board on any and all other proposals or other business that may come before any such shareholder meetings, whether or not proposed by the Company and whether or not bindingbinding (including for the avoidance of doubt any proposal relating to a re-domiciling of the Company to Canada and proposals, including any charter or bylaw provisions, designed to replicate any of the currently existing aspects of the Company’s corporate governance structure, including as set forth in the Company’s organizational documents and applicable law, including its charter and bylaws (collectively, the “Redomiciling Proposal and Related Matters”), other than than, except in each case for the Redomiciling Proposal and Related Matters, (w) approval of a shareholder rights plan, (x) amendments to the Company’s articles of incorporation or bylaws that diminish shareholder rights relative to the rights shareholders have with respect to the Company as of the date hereof hereof, (y) approval of sale or merger of the Company Extraordinary Matters or (z) approval of new or amended equity incentive compensation plans submitted for shareholder approval). During the Standstill Period, JXXX further agrees not to, and shall cause its Affiliates and Associates not to, directly or indirectly and in any proposed stock issuances manner, (A) submit any proposal for consideration by, or bring any other business before, the shareholders or initiate, encourage or participate in any “withhold” or similar campaign against the Company or its directors or management, (B) make, or cause to be made, any statement, announcement or public filing with respect to any proposal or matter to be considered by the Companyshareholders, whether at any annual or special meeting of shareholders or with respect to any request or call for a special meeting or otherwise, which statement, announcement or public filing is inconsistent with the recommendation by the Board, and (C) publicly or privately encourage or support any shareholder or other person to take any of the actions in the foregoing clauses (A)-(B) or any of the actions addressed in Section 5(a).
(c) During the Standstill Period, neither the Company nor any of its Affiliates or Associates shall in any manner, directly or indirectly, make, or cause to be made, or in any way encourage any other person to make or cause to be made, any statement, announcement or disclosure negatively commenting upon the Stockholder Group any New Nominee, JXXX or any of the Stockholder GroupJANA’s Affiliates or any of the Stockholder GroupJANA’s current or former partners, members or officers (including through any press release or other publicly available format, the filing or furnishing of any document or report with any regulatory or governmental agency or stock exchange, any Internet posting, or any public or private disclosure to any journalist or member of the media (including in a television, radio, newspaper, online, magazine or other interview, regardless of format), shareholder, securities analyst or other person); provided, that the Company shall not be deemed in breach of this Section 4(c5(c) by virtue of an unpremeditated, private, informal remark that is not part of any coordinated communication or campaign and is not intended or designed to circumvent, directly or indirectly, the restrictions contemplated by this Section 4(c5(c). The limitations set forth in this Section 4(c5(c) shall not prevent the Company or any of its Affiliates or Associates, from responding, after giving prior written notice to the Stockholder Group JXXX a reasonable time in advance of any such response, to any statement made by the Stockholder Group JXXX or any of its Affiliates or Associates of the nature described in Section 4(a)(ix) or (x5(a)(ix) of this Agreement if such statement was made in breach of this Agreement.
(d) Effective upon execution of this Agreement, the Stockholder Group hereby irrevocably withdraws its Notice of Intent to Nominate for Election as Directors at the 2015 Annual Meeting of the Stockholders of Investment Technology Group, Inc., dated March 12, 2015.
Appears in 1 contract
Standstill; Voting; Other Matters. (a) During the Standstill Period (as such term is hereinafter defined), each of the Stockholders Voce agrees that neither it nor any of its Affiliates or Associates, will in any manner, directly or indirectly, absent prior express invitation or authorization by the Board pursuant to a resolution of the Board:
(i) effect or seek (including entering into any discussions, negotiations, agreements or understandings with any third person), offer or propose (whether publicly or otherwise) to effect, or cause or participate in, or in any way assist, facilitate, finance or encourage any other person to effect or seek, offer or propose (whether publicly or otherwise) to effect or participate in: (1) any acquisition of any securities (or beneficial ownership thereof), rights or options to acquire any securities (or beneficial ownership thereof) or any Derivative Instruments, or any assets or businesses, or any indebtedness or claims against any of the Company or any of its subsidiaries; provided that the StockholdersVoce, together with their its Affiliates and Associates, may acquire beneficial ownership of Shares if upon such acquisition the aggregate beneficial ownership of Shares by both Stockholders Voce and their respective its Affiliates and Associates would not at any time be in excess of 107.5% of the number of Shares that are then outstanding (as adjusted for any stock dividends, combinations, splits or recapitalizations); (2) any share repurchase, dividend, self-tender or other change in capitalization, change in management or material change in the business, tender offer or exchange offer, merger, amalgamation, acquisition, share exchange or business combination involving the Company or any of its subsidiaries, or any recapitalization, reorganization, restructuring, liquidation, disposition, dissolution or other extraordinary transaction with respect to the Company or any of its subsidiaries or joint ventures or any portion of its or their businesses or assets (other than participating in any such event referred to in clause (2) on the same basis as the other shareholdersstockholders);
(ii) seek to call, request the call of, or call or make application to a court or other person to call, order, requisition or administer, a special or other meeting of the shareholders stockholders of the Company, seek to make or make, present, conduct, participate or engage in any shareholder stockholder proposals of any kind or other type of referendum (binding or non-binding), including nominations for, elections of or removal of directorsdirectors (in furtherance of a “contested solicitation” or not), for consideration at any annual or special meeting of shareholdersstockholders, through action by written consent or otherwise, or seek to make or make, engage in or participate in any solicitation of proxies or consents or other authority to vote any securities of the Company with respect to nominations for, elections of or removal of directors or any other proposal or business (binding or non-binding) to be considered by the Company’s shareholdersstockholders, whether at an annual or special meeting of shareholdersstockholders, regarding the call of a special meeting of shareholders stockholders or through action by written consent or otherwise;
(iii) encourage, advise or influence any other person or assist any person in so encouraging, assisting advising or influencing any person with respect to the giving or withholding of any proxy, consent or other authority to vote or in conducting any type of referendum (other than such encouragement, advice or influence that is consistent with the Board or Company management’s recommendation in connection with such matter);
(iv) form or join in a partnership, limited partnership, syndicate or other group, including a group as defined under Section 13(d) of the Exchange Act or other applicable law, with respect to the Shares (for the avoidance of doubt, excluding any group comprised solely of the Stockholder Group and the Affiliates and Associates of either Stockholder)Shares, or otherwise support or participate in any effort by any person, with respect to the matters set forth in this Section 54, or deposit any Shares in a voting trust or subject any Shares to any voting agreement or other arrangement of similar effect or grant any proxy, consent or other authority to vote with respect to any matters (other than to the named proxies included in the Company’s proxy card for any annual or special meeting of shareholders stockholders or action by written consent) with respect to the Shares now or hereafter owned by the Stockholder Group Voce or pursuant to this Agreement (excluding customary brokerage accounts, margin accounts, prime brokerage accounts and the like);
(v) otherwise act, alone or in concert with others, to seek to control or influence the management, the Board or policies of the Company (provided that the foregoing shall not be deemed to restrict the Stockholder Group Voce from having private discussions with management or the Board if such communications are not publicly disclosed and would not result in public disclosure by the Stockholder GroupVoce, or its Affiliates or Associates, or require public disclosure by the Company), or, except as provided by Section 3(c) hereof with respect to the search for the Additional Independent Director, or initiate or take any action to obtain representation on the Board or alter the composition of the Board or management;
(vi) other than in Rule 144-compliant open market broker sale transactions where the identity of the purchaser is not known and in underwritten public offerings with widely-dispersed distribution, sell, offer or agree to sell directly or indirectly, through swap or hedging transactions or otherwise, the securities of the Company or any rights decoupled from the underlying securities held by the Stockholder Group Voce or any of the its Affiliates or Associates of either Stockholder to any person or entity not a party to this Agreement (a “Third Party”) that to the Stockholder Group or the knowledge of the Voce or its Affiliates or Associates of either Stockholder (after due inquiry in connection with a private, non-open market transaction, ; it being understood that such knowledge shall be deemed to exist with respect to any publicly available information, including information in documents filed with the U.S. Securities and Exchange Commission (the “SEC”)) would result in such Third Party, together with its Affiliates and Associates, owning, controlling or otherwise having any beneficial or other ownership interest in the aggregate of 5% or more of the Shares outstanding at such time or would increase the beneficial or other ownership interest of any Third Party who, together with its Affiliates and Associates, has a beneficial or other ownership interest in the aggregate of 5% or more of the Shares outstanding at such time, except in a transaction approved by the Board;
(vii) make any request or demand or seek inspection, investigation or examination of any list or register of the Company’s shareholders stockholders or debtholders of any class or series, any other stocklist stock list materials or of any other books or records of the Company or its Affiliates or make application or demand to a court or other person for an inspection, investigation or examination of the Company or its Affiliates or invoke any “oppression” or other remedy pursuant to any provision of applicable law, statute, the Company’s organizational documents or otherwise;
(viii) institute, solicit, assist or join, as a party, any litigation, arbitration or other proceeding against or involving the Company or any of its current or former directors or officers (including derivative actions) other than to enforce the provisions of this Agreement against the Company;
(ix) disclose that the Stockholder Group or the Affiliates or Associates of either Stockholder voted contrary to the recommendation of the Board on any matter other than as permitted by Section 4(b) hereof;
(x) make, or cause to be made, or in any way encourage any other person to make or cause to be made, any statement, announcement or disclosure that disparages, defames or slanders, negatively commenting comments upon or otherwise constitutes an ad hominem attack on the Company or any of its Affiliates, including as to corporate strategy or policies, structure, business, corporate activities, management, the Board or individual members of management or the Board, including any former member of management or the Board (including through any press release or other publicly available format, the filing or furnishing of any document or report with any regulatory or governmental agency or stock exchange, any Internet posting, or any public or private disclosure to any journalist or member of the media (including in a television, radio, newspaper, online, magazine or other interview, regardless of format), shareholderstockholder, securities analyst or other person); provided, that the Stockholder Group Voce or any of its Affiliates or Associates shall not be deemed in breach of this clause (a)(xa)(ix) by virtue of an unpremeditated, private, informal remark that is not part of any coordinated communication or campaign and is not intended or designed to circumvent, directly or indirectly, the restrictions contemplated by this Agreement (without giving effect to this proviso). The limitations set forth in this Section 4(a)(x4(a)(ix) shall not prevent the Stockholder Group Voce or any of its Affiliates or Associates from responding, after giving prior written notice to the Company a reasonable time in advance of any such response, to any statement made by the Company or any of its Affiliates or Associates of the nature described in Section 4(c) of this Agreement if such statement was made in breach of this Agreement;
(xix) take any action which would, or would reasonably be expected to, result in the Company being required to make a public announcement;
(xiixi) request any permission, waiver or amendment of any provision of this Agreement, disclose any intent, purpose, plan or proposal to obtain any such permission, waiver or amendment under this Agreement or bring any action or otherwise act to contest the validity of this Agreement or seek a release from the restrictions or obligations contained in this Agreement in each case in a manner that would result in public disclosure by the Stockholder GroupVoce, or the its Affiliates or Associates of either StockholderAssociates, or require public disclosure by the Company; or
(xiiixii) enter into any discussions or arrangements with any person with respect to any of the foregoing or disclose publicly or privately in any manner any intention, plan or arrangement that is inconsistent with the foregoing. For the avoidance of doubt, each Stockholder Voce shall cause its respective Affiliates and Associates to comply with the obligations under this Agreement and shall be liable for any failure to so comply by any of its respective Affiliates and Associates.
(b) During the Standstill Period, each Stockholder Voce shall cause all Shares beneficially owned, directly or indirectly, by it, or by any of its Affiliates or Associates (including all Shares beneficially owned as of the record dates for any annual or special meeting of shareholders stockholders or other action by shareholdersstockholders, including through written consent) over which it exercises or has voting authority, to be present for quorum purposes and to be voted, at such meetings or other method for shareholder stockholder action or at any adjournments or postponements thereof, in favor of any and all directors nominated by the Board for election at such meetings and in accordance with the recommendation of the Board on any and all other proposals or other business that may come before any such shareholder stockholder meetings, whether or not proposed by the Company and whether or not binding, other than (w) approval of a shareholder rights plan, (x) amendments to the Company’s articles of incorporation or bylaws that diminish shareholder rights relative to the rights shareholders have with respect to the Company as of the date hereof (y) approval of sale or merger of the Company or (z) approval of any proposed stock issuances by the Company.
(c) During the Standstill Period, neither the Company nor any of its Affiliates or Associates shall in any manner, directly or indirectly, make, or cause to be made, or in any way encourage any other person to make or cause to be made, any statement, announcement or disclosure that disparages, defames or slanders, negatively commenting comments upon or otherwise constitutes an ad hominem attack on the Stockholder Group New Nominee, Voce, any Affiliate or Associate of Voce, or any of the Stockholder Group’s Affiliates their successors, members, officers, directors or any of the Stockholder Group’s current or former partners, members or officers employees (including through any press release or other publicly available format, the filing or furnishing of any document or report with any regulatory or governmental agency or stock exchange, any Internet posting, or any public or private disclosure to any journalist or member of the media (including in a television, radio, newspaper, online, magazine or other interview, regardless of format), shareholderstockholder, securities analyst or other person); provided, that the Company and any of its Affiliates or Associates shall not be deemed in breach of this Section 4(c) by virtue of an unpremeditated, private, informal remark that is not part of any coordinated communication or campaign and is not intended or designed to circumvent, directly or indirectly, the restrictions contemplated by this Section 4(c). The limitations set forth in this Section 4(c) shall not prevent the Company or any of its Affiliates or Associates, Associates from responding, after giving prior written notice to the Stockholder Group Voce a reasonable time in advance of any such response, to any statement made by the Stockholder Group Voce or any of its Affiliates or Associates of the nature described in Section 4(a)(ix) or (x) of this Agreement if such statement was made in breach of this Agreement.
(d) Effective upon execution of this Agreement, the Stockholder Group Voce hereby irrevocably withdraws its Notice of Intent to Nominate for Election as Directors at the 2015 2016 Annual Meeting of the Stockholders of Investment Technology Group, Inc.Meeting, dated March 12February 19, 20152016.
Appears in 1 contract
Standstill; Voting; Other Matters. (a) During the Standstill Period (as such term is hereinafter defined)Period, each of the Stockholders agrees that neither it nor any of its Affiliates or Associates, JCF will not in any manner, and shall cause its Affiliates and Associates to not, directly or indirectly, absent prior express invitation or authorization by the Board pursuant to a resolution of the Board:
(i) effect or seek (including entering into any discussions, negotiations, agreements or understandings with any third person), offer or propose (whether publicly or otherwise) to effect, or cause or participate in, or in any way assist, facilitate, finance or knowingly encourage any other person to effect or seek, offer or propose (whether publicly or otherwise) to effect or participate in: (1) any acquisition of any equity securities (or beneficial ownership thereof), rights or options to acquire any equity securities (or beneficial ownership thereof) of the Company or any of its subsidiaries or any Derivative Instruments, or any assets or businesses, or any indebtedness or claims against any businesses of the Company or any of its subsidiaries; provided that the StockholdersJCF, together with their its Affiliates and Associates, may acquire beneficial ownership of Shares if upon such acquisition the aggregate beneficial ownership of Shares by both Stockholders JCF and their respective its Affiliates and Associates would not at any such time be in excess of 109.9% of the number of Shares that are then outstanding (as adjusted for any stock dividends, combinations, splits or recapitalizationsbased on the most recent Company SEC filings); or (2) any share repurchase, dividend, self-tender or other change in capitalization, change in management or material change in the business, tender offer or exchange offer, merger, amalgamation, acquisition, share exchange or business combination involving the Company or any of its subsidiaries, or any recapitalization, reorganization, restructuring, liquidation, disposition, dissolution or other extraordinary transaction with respect to the Company or any of its subsidiaries or joint ventures or any portion of its or their businesses or assets (other than participating in any such event referred to in clause (2) which is recommended by the Board, which recommendation has not been withdrawn, on the same basis as is made available to the other shareholders);
(ii) seek to call, request the call of, or call or make application to a court or other person to call, order, requisition or administer, a special or other meeting of the shareholders of the Company, seek to make or make, present, conduct, participate or engage in any shareholder proposals of any kind or other type of referendum (binding or non-binding), including nominations for, elections of or removal of directorsdirectors (and including nominations for director nominees to be included in the Company’s proxy materials), for consideration at any annual or special meeting of shareholders, through action by written consent or otherwise, or seek to make or make, engage in or participate in any solicitation of proxies or consents (whether or not such solicitation is exempt under Rule 14a-2 of the Exchange Act) or other authority to vote any securities of the Company with respect to nominations for, elections of or removal of directors or any other proposal or business (binding or non-binding) to be considered by the Company’s shareholders, whether at an annual or special meeting of shareholders, regarding the call of a special meeting of shareholders or through action by written consent or otherwise;
(iii) encourage, advise or influence any other person or assist any person in so encouraging, assisting or influencing any person with respect to the giving or withholding of any proxy, consent or other authority to vote or in conducting any type of referendum (other than such encouragement, advice or influence that is consistent with the Board or Company management’s recommendation in connection with such matter);
(iv) form or join in a partnership, limited partnership, syndicate or other group, including a group as defined under Section 13(d) of the Exchange Act or other applicable law, with respect to the Shares (for the avoidance of doubt, excluding any group comprised solely of the Stockholder Group and the JCF, its Affiliates and Associates of either StockholderAssociates), or otherwise support or participate in any effort by any person, with respect to the matters set forth in this Section 5, or deposit any Shares in a voting trust or subject any Shares to any voting agreement or other arrangement of similar effect or grant any proxy, consent or other authority to vote with respect to any matters (other than to an officer, director or Affiliate of JCF that is subject to this Agreement or the named proxies included in the Company’s proxy card for any annual or special meeting of shareholders or action by written consent) with respect to the Shares now or hereafter owned by the Stockholder Group or pursuant to this Agreement JCF (excluding customary brokerage accounts, margin accounts, prime brokerage accounts and the like);
(v) otherwise act, alone or in concert with others, to seek to control or influence the management, the Board board of directors or policies of the Company Company, or, initiate or take any action to alter the composition of the Board or management (provided that the foregoing shall not be deemed to restrict the Stockholder Group New Nominee from having private discussions with management actions taken in good faith solely in his capacity as a director of the Company or a member of any committee of the Board if such or any private communications are not publicly disclosed between JCF and would not result in public disclosure by the Stockholder Group, New Nominee) or its Affiliates or Associates, or require public disclosure by the Company), or, except as provided by Section 3(c) hereof with respect to the search for the Additional Independent Director, initiate or take any action to obtain additional representation on the Board or alter the composition of the Board or managementBoard;
(vi) other than in Rule 144-compliant open market broker sale transactions where the identity of the purchaser is not known and in underwritten public offerings with widely-dispersed distribution, sell, offer or agree to sell directly or indirectly, through swap or hedging transactions or otherwise, the securities of the Company or any rights decoupled from the underlying securities held by the Stockholder Group JCF or any of the its Affiliates or Associates of either Stockholder to any person or entity not a party to this Agreement (a “Third Party”) that to the Stockholder Group JCF’s or the its Affiliate’s or Associate’s knowledge of the Affiliates or Associates of either Stockholder (after due inquiry in connection with a private, non-open market transaction, it being understood that if JCF or its Affiliates have actual knowledge of the identity of the Third Party, such knowledge shall be deemed to exist with respect to any publicly available information, including include information in documents filed with the SEC, but in no event shall (i) the knowledge of JCF’s or its Affiliates’ broker be imputed to JCF or its Affiliates or (ii) JCF or its Affiliates have any obligation to make any inquiry or investigation as to the identity of the Third Party) would result in such Third Party, together with its Affiliates and Associates, owning, controlling or otherwise having any beneficial or other ownership interest in the aggregate of 5% or more of the Shares outstanding at such time or would increase the beneficial or other ownership interest of any Third Party who, together with its Affiliates and Associates, has a beneficial or other ownership interest in the aggregate of 5% or more of the Shares outstanding at such time, except in a transaction approved by the Board;
(vii) make any request or demand or seek inspection, investigation or examination of any list or register of the Company’s shareholders or debtholders of any class or series, any other stocklist materials or of any other books or records of the Company or its Affiliates or make application or demand to a court or other person for an inspection, investigation or examination of the Company or its Affiliates or invoke any “oppression” or other remedy pursuant to any provision of applicable law, statute, the Company’s organizational documents or otherwiseotherwise (provided that the foregoing shall not be deemed to restrict the New Nominee from actions taken in good faith solely in his capacity as a director of the Company or a member of any committee of the Board);
(viii) institute, solicit, assist or join, as a party, any litigation, arbitration or other proceeding against or involving the Company or any of its current or former directors or officers (including derivative actions) other than (1) to enforce the provisions of this Agreement or the Confidentiality Agreement against the Company, (2) in its capacity as the Holders’ Representative to enforce the provisions of that certain Agreement and Plan of Merger, by and among IMB Holdco LLC, the Company and the Holders’ Representative, dated as of July 21, 2014, as amended, against the Company, or (3) commercial litigation by portfolio companies of JCF or its Affiliates or Associates not relating to shareholder matters;
(ix) disclose that the Stockholder Group or the Affiliates or Associates of either Stockholder voted contrary to the recommendation of the Board on any matter other than as permitted by Section 4(b) hereof;
(x) make, or cause to be made, or in any way encourage any other person to make or cause to be made, any statement, announcement or disclosure negatively commenting upon the Company or any of its Affiliates, including as to corporate strategy or policies, structure, business, corporate activities, management, the Board or individual members of management or the Board, including any former member of management or the Board (including through any press release or other publicly available format, the filing or furnishing of any document or report with any regulatory or governmental agency or stock exchange, any Internet posting, or any public or private disclosure to any journalist or member of the media (including in a television, radio, newspaper, online, magazine or other interview, regardless of format), shareholder, securities analyst or other person); provided, that the Stockholder Group shall not be deemed in breach of this clause (a)(x) by virtue of an unpremeditated, private, informal remark that is not part of any coordinated communication or campaign and is not intended or designed to circumvent, directly or indirectly, the restrictions contemplated by this Agreement (without giving effect to this proviso). The limitations set forth in this Section 4(a)(x) shall not prevent the Stockholder Group or any of its Affiliates or Associates from responding, after giving prior written notice to the Company a reasonable time in advance of any such response, to any statement made by the Company or any of its Affiliates or Associates of the nature described in Section 4(c) of this Agreement if such statement was made in breach of this Agreement;
(xi) take any action which would, or would reasonably be expected to, result in the Company being required having to make a public announcementannouncement with respect to any of the foregoing;
(xiix) request any permission, waiver or amendment of any provision of this Agreement, disclose any intent, purpose, plan or proposal to obtain any such permission, waiver or amendment under this Agreement or bring any action or otherwise act to contest the validity of this Agreement or seek a release from the restrictions or obligations contained in this Agreement in each case in a manner that would reasonably require or result in public disclosure by the Stockholder GroupJCF or its Affiliates or Associates, or the Affiliates or Associates of either Stockholder, or require public disclosure by the Company; or
(xiiixi) enter into any discussions or arrangements with any person with respect to any of the foregoing or disclose publicly or privately in any manner any intention, plan or arrangement that is inconsistent with the foregoing. For the avoidance of doubt, each Stockholder shall cause its respective Affiliates and Associates to comply with the obligations under this Agreement and shall be liable for any failure to so comply by any of its respective Affiliates and Associates.
(b) During the Standstill Period, each Stockholder JCF shall cause all Shares beneficially owned, directly or indirectly, by it, or by any of its Affiliates or Associates (including all Shares beneficially owned as of the record dates for any annual or special meeting of shareholders or other action by shareholders, including through written consent) , over which it exercises or has voting authority, to be present for quorum purposes and to be voted, at such meetings or other method for shareholder action (including by proxy or written consent) or at any adjournments or postponements thereof, (i) in favor of any and all directors persons nominated by the Board for election as directors at such meetings (provided that the New Nominee is among such nominees) and (ii) in accordance with the recommendation of the Board on any and all other proposals or other business that may come before any such shareholder meetings, meetings whether or not proposed by the Company Board and whether or not binding, other than (w) approval of a shareholder rights plan, (x) amendments to the Company’s articles of incorporation or bylaws that diminish shareholder rights relative to the rights shareholders have with respect to the Company as of the date hereof (y) approval of sale or merger of the Company or (z) approval of any proposed stock issuances proposals by the Company.
(c) Board that relate to an Extraordinary Transaction. During the Standstill Period, neither the Company nor any of JCF further agrees not to, and shall cause its Affiliates and Associates not to, directly or Associates shall indirectly and in any manner, directly (A) submit any proposal for consideration by, or indirectlybring any other business before, the shareholders or initiate, encourage or participate in any “withhold” or similar campaign against the Company or its directors or management, (B) make, or cause to be made, or in any way encourage any other person to make or cause to be made, any statement, announcement or disclosure negatively commenting upon public filing with respect to any proposal or matter to be considered by the Stockholder Group shareholders, whether at any annual or special meeting of shareholders or with respect to any request or call for a special meeting or otherwise, which statement, announcement or public filing is inconsistent with the recommendation by the Board, and (C) publicly or privately encourage or support any shareholder or other person to take any of the actions in the foregoing clauses (A)-(B) or any of the Stockholder Group’s Affiliates or any of the Stockholder Group’s current or former partners, members or officers (including through any press release or other publicly available format, the filing or furnishing of any document or report with any regulatory or governmental agency or stock exchange, any Internet posting, or any public or private disclosure to any journalist or member of the media (including in a television, radio, newspaper, online, magazine or other interview, regardless of format), shareholder, securities analyst or other person); provided, that the Company shall not be deemed in breach of this Section 4(c) by virtue of an unpremeditated, private, informal remark that is not part of any coordinated communication or campaign and is not intended or designed to circumvent, directly or indirectly, the restrictions contemplated by this Section 4(c). The limitations set forth in this Section 4(c) shall not prevent the Company or any of its Affiliates or Associates, from responding, after giving prior written notice to the Stockholder Group a reasonable time in advance of any such response, to any statement made by the Stockholder Group or any of its Affiliates or Associates of the nature described actions addressed in Section 4(a)(ix) or (x) of this Agreement if such statement was made in breach of this Agreement5(a).
(d) Effective upon execution of this Agreement, the Stockholder Group hereby irrevocably withdraws its Notice of Intent to Nominate for Election as Directors at the 2015 Annual Meeting of the Stockholders of Investment Technology Group, Inc., dated March 12, 2015.
Appears in 1 contract
