Standstill. Effective from the date of this Agreement and continuing until the later of the certification of votes for the Company 2017 Annual Meeting of Stockholders or the certification of votes for the FSFR (as defined below) 2017 Annual Meeting of Stockholders (the “Standstill Period”), except to the extent expressly permitted by the terms of this Agreement, none of the Sellers shall, and Sellers shall cause their respective controlled Affiliates not to, directly or indirectly, in any manner, alone or in concert with others: (a) solicit, or knowingly encourage or in any way engage in any solicitation of, any proxies or consents or become a “participant” in a “solicitation,” directly or indirectly, as such terms are defined in Regulation 14A under the Securities Exchange Act of 1934, as amended (the “Exchange Act”) of proxies or consents (including, without limitation, any solicitation of consents that seeks to call a special meeting of stockholders or by encouraging or participating in any “withhold” or similar campaign), in each case, with respect to securities of the Company or Fifth Street Senior Floating Rate Corp. (“FSFR”) or any securities convertible or exchangeable into or exercisable for any such securities (collectively, “securities of the Companies”); (b) make any proposal for consideration by stockholders at any annual or special meeting of the stockholders of the Company or FSFR, whether pursuant to Rule 14a-8 under the Exchange Act, either such company’s constituent documents or otherwise; (c) knowingly advise, encourage, support, instruct or influence any person with respect to any of the matters covered by this Section 3.1 or with respect to the voting or disposition of any securities of the Companies at any annual or special meeting of stockholders of the Company or FSFR, except in accordance with Section 3.4, or seek to do so; (d) agree, attempt, seek or propose to deposit any securities of the Companies in any voting trust or similar arrangement, or subject any securities of the Companies to any arrangement or agreement with respect to the voting thereof, except in accordance with Section 3.4; (e) knowingly seek or encourage any person to submit nominations in furtherance of a “contested solicitation” or take other action for the election or removal of directors with respect to the Company or FSFR, including any action that is intended to, or is reasonably likely to result in, the replacement of the investment advisor of the Company or FSFR, or a modification to the terms or conditions of either the Company’s or FSFR’s investment advisory agreement; (f) form, join in or in any way participate in a partnership, limited partnership, syndicate or other group, including, without limitation, a group as defined under Section 13(d) of the Exchange Act (except such participation related to the reasonable unwinding of any such group currently existing as of the date of this Agreement) with any person who is not identified on Schedule I hereto (any such person, a “Third Party”), with respect to any securities of the Companies or take any other action that would interfere with the ability of Sellers to vote in accordance with this Agreement; (g) make any disclosure, communication, announcement or statement regarding any intent, purpose, plan or proposal with respect to the FSC Board of Directors (the “Company Board”), the Company investment advisor or the terms and conditions of the Company’s investment advisory agreement, the FSFR Board of Directors (the “FSFR Board”), the FSFR investment advisor or the terms and conditions of FSFR’s investment advisory agreement, the Company, FSFR, or the management, policies or affairs of either the Company or FSFR, or with respect to this Agreement, that is inconsistent with the provisions of this Agreement; (h) effect or seek to effect, offer or propose to effect, cause or participate in, or in any way assist or facilitate any other person to effect or seek, offer or propose to effect or participate in, any tender or exchange offer, merger, consolidation, acquisition, scheme, arrangement, business combination, recapitalization, reorganization, sale or acquisition of assets, liquidation, dissolution, extraordinary dividend, significant share repurchase or other extraordinary transaction involving the Company, FSFR or either of their investment advisors, or any of their subsidiaries or joint ventures or any of their respective securities (each, an “Extraordinary Transaction”), or make any statement or disclosure regarding any intent, purpose, plan or proposal with respect to any Extraordinary Transaction or this Agreement that is inconsistent with the provisions of this Agreement, including any intent, purpose, plan or proposal that is conditioned on, or would require waiver, amendment, nullification or invalidation of, any provision of this Agreement or take any action that could require the Company or FSFR to make any public disclosure relating to any such intent, purpose, plan, proposal or condition; (i) (i) call or seek to call or request the calling of any meeting of stockholders at either the Company or FSFR, including by written consent, (ii) seek, alone or in concert with others, representation on, or nominate any candidate to, the Company Board or the FSFR Board, (iii) seek the removal of any member of the Company Board or the FSFR Board, (iv) seek, alone or in concert with others, or support any Third Party in seeking, to replace the investment advisor of the Company or the investment advisor of FSFR, (v) solicit consents from the Company or FSFR stockholders or otherwise act or seek to act by written consent, (vi) conduct a referendum of the Company or FSFR stockholders or (vii) make a request for any stockholders list or any other books and records in Sellers’ capacity as a Company or FSFR stockholder; (j) purchase or cause to be purchased or otherwise acquire or agree to acquire beneficial ownership of any securities issued by the Company or FSFR, or any securities convertible into or exchangeable for securities issued by the Company or FSFR; (k) sell, offer to sell, give, pledge, grant a security interest in, encumber, assign, grant any option for the sale of or otherwise transfer or dispose of (each, a “Transfer”) any securities issued by the Company and/or any securities convertible into or exchangeable for securities issued by the Company, unless any Buyer fails to timely perform each of its obligations under Section 1.2(b), Section 1.3(c) and/or Section 1.3(d)(i) of this Agreement; (l) institute, solicit or join, as a party, or knowingly assist any other person in instituting, soliciting or joining, any litigation, arbitration or other proceeding against the Company or FSFR or any of their current or former directors or officers (including derivative actions), other than (i) litigation to enforce the provisions of this Agreement and (ii) counterclaims with respect to any proceeding initiated by, or on behalf of, a party to this Agreement or FSFR against Sellers; (m) enter into or engage in any short sale or purchase, sale or grant of any option, warrant, derivative, convertible security, stock appreciation right or other similar right (including, without limitation, any put or call option or swap transaction) with respect to or having any measurement relating to any securities of the Companies; (n) enter into any negotiations, arrangements, understanding or agreements (whether written or oral) with, or advise, finance, assist, seek to knowingly persuade or encourage, any Third Party to take any action or make any statement in connection with any of the foregoing, or make any investment in or enter into any arrangement with any other person that engages, or offers or proposes to engage, in any of the foregoing, or otherwise take or cause any action or make any statement inconsistent with any of the foregoing; or (o) take any action challenging the validity or enforceability of this Agreement, or make or in any way advance any request or proposal that the Company, FSFR, the Company Board or the FSFR Board amend, modify or waive any provision of this Agreement.
Appears in 6 contracts
Samples: Purchase and Settlement Agreement (Rivernorth Capital Management, LLC), Purchase and Settlement Agreement (Tannenbaum Leonard M), Purchase and Settlement Agreement (Tannenbaum Leonard M)
Standstill. Effective from the date None of this Agreement and continuing until the later of the certification of votes for the Company 2017 Annual Meeting of Stockholders CSH or the certification of votes for the FSFR (as defined below) 2017 Annual Meeting of Stockholders (the “Standstill Period”), except to the extent expressly permitted by the terms of this Agreement, none of the Sellers shall, and Sellers its Permitted Transferees or subsidiaries shall cause their respective controlled Affiliates not to, directly or indirectly, in any manner, indirectly (a) acting alone or in concert with others:
, seek to effect a change in control of Parent or the business, operations or policies of Parent; (ab) solicitinitiate or propose any stockholder proposal or make, or knowingly encourage or in any way engage in any solicitation ofway, any proxies or consents or become a “participant” in a “solicitation,” participate in, directly or indirectly, any "solicitation" of "proxies" to vote or intentionally seek in an organized fashion to influence any person with respect to the voting of, any Parent Voting Securities in a manner inconsistent with the position of the board of directors of Parent or become "participant" in a "solicitation" (as such terms are defined in Regulation 14A under the Securities Exchange Act of 1934, as amended (the “Exchange Act”) of proxies or consents (including, without limitation, any solicitation of consents that seeks to call a special meeting of stockholders or by encouraging or participating in any “withhold” or similar campaign), in each case, with respect to securities of the Company or Fifth Street Senior Floating Rate Corp. (“FSFR”) or any securities convertible or exchangeable into or exercisable for any such securities (collectively, “securities of the Companies”);
(b) make any proposal for consideration by stockholders at any annual or special meeting of the stockholders of the Company or FSFR, whether pursuant to Rule 14a-8 under the Exchange Act, either such company’s constituent documents or otherwise;
(cas in effect on the date hereof) knowingly advise, encourage, support, instruct or influence any person in opposition to the recommendation of the majority of the directors of Parent with respect to any of the matters covered by this Section 3.1 or with respect to the voting or disposition of any securities of the Companies at any annual or special meeting of stockholders of the Company or FSFR, except in accordance with Section 3.4, matter; (c) propose or seek to do so;
effect a merger, consolidation, recapitalization, reorganization, sale, lease, exchange or other disposition of substantially all assets or other business combination involving, or a tender or exchange offer for securities of, Parent or any of its subsidiaries or any material portion of its or such subsidiary's business or assets, or any similar transaction that has not been approved by the Board of Directors of Parent; (d) agree, attempt, seek or propose to deposit any securities of the Companies in any voting trust or similar arrangement, or subject any securities of the Companies to any arrangement or agreement with respect to the voting thereof, except in accordance with Section 3.4;
(e) knowingly seek or encourage any person to submit nominations in furtherance of a “contested solicitation” or take other action for the election or removal of directors with respect to the Company or FSFR, including any action that is intended to, or is reasonably likely to result in, the replacement of the investment advisor of the Company or FSFR, or a modification to the terms or conditions of either the Company’s or FSFR’s investment advisory agreement;
(f) form, join in or in any way participate in a partnership, limited partnership, syndicate or other group, including, without limitation, group (other than a group as defined under consisting of CSH, its Permitted Transferees and any of their subsidiaries), or otherwise act in concert with any other person, for the purpose of acquiring, holding, voting or disposing of Parent Voting Securities, or, otherwise become a "person" within the meaning of Section 13(d13(d)(3) of the Exchange Act (except such participation related relating to the reasonable unwinding of any such group currently existing as of the date of this Agreement) with any person who is not identified on Schedule I hereto matters set forth in clauses (any such person, a “Third Party”a), with respect to any securities of the Companies (b), (c) or take (d); or (e) request, or induce or encourage any other action that would interfere with the ability of Sellers person to vote in accordance with this Agreement;
(g) make any disclosure, communication, announcement or statement regarding any intent, purpose, plan or proposal with respect to the FSC Board of Directors (the “Company Board”), the Company investment advisor or the terms and conditions of the Company’s investment advisory agreement, the FSFR Board of Directors (the “FSFR Board”), the FSFR investment advisor or the terms and conditions of FSFR’s investment advisory agreement, the Company, FSFR, or the management, policies or affairs of either the Company or FSFR, or with respect to this Agreementrequest, that is inconsistent with Parent amend or waive any of the provisions of this Agreement;
(h) effect or seek to effect, offer or propose to effect, cause or participate in, or in any way assist or facilitate any other person to effect or seek, offer or propose to effect or participate in, any tender or exchange offer, merger, consolidation, acquisition, scheme, arrangement, business combination, recapitalization, reorganization, sale or acquisition of assets, liquidation, dissolution, extraordinary dividend, significant share repurchase or other extraordinary transaction involving the Company, FSFR or either of their investment advisors, or any of their subsidiaries or joint ventures or any of their respective securities (each, an “Extraordinary Transaction”), or make any statement or disclosure regarding any intent, purpose, plan or proposal with respect to any Extraordinary Transaction or this Agreement that is inconsistent with the Section 4.6. The provisions of this Agreement, including any intent, purpose, plan or proposal that is conditioned on, or would require waiver, amendment, nullification or invalidation of, any provision of this Agreement or take any action that could require Section 4.6 shall cease to apply at such time after the Company or FSFR Merger as CSH and its affiliates collectively cease to make any public disclosure relating to any such intent, purpose, plan, proposal or condition;
(i) (i) call or seek to call or request the calling of any meeting of stockholders beneficially own at either the Company or FSFR, including by written consent, (ii) seek, alone or in concert with others, representation on, or nominate any candidate to, the Company Board or the FSFR Board, (iii) seek the removal of any member least 25% of the Company Board or Parent Common Stock acquired by CSH in the FSFR Board, (iv) seek, alone or in concert with others, or support any Third Party in seeking, to replace the investment advisor of the Company or the investment advisor of FSFR, (v) solicit consents from the Company or FSFR stockholders or otherwise act or seek to act by written consent, (vi) conduct a referendum of the Company or FSFR stockholders or (vii) make a request for any stockholders list or any other books and records in Sellers’ capacity as a Company or FSFR stockholder;
(j) purchase or cause to be purchased or otherwise acquire or agree to acquire beneficial ownership of any securities issued by the Company or FSFR, or any securities convertible into or exchangeable for securities issued by the Company or FSFR;
(k) sell, offer to sell, give, pledge, grant a security interest in, encumber, assign, grant any option for the sale of or otherwise transfer or dispose of (each, a “Transfer”) any securities issued by the Company and/or any securities convertible into or exchangeable for securities issued by the Company, unless any Buyer fails to timely perform each of its obligations under Section 1.2(b), Section 1.3(c) and/or Section 1.3(d)(i) of this Agreement;
(l) institute, solicit or join, as a party, or knowingly assist any other person in instituting, soliciting or joining, any litigation, arbitration or other proceeding against the Company or FSFR or any of their current or former directors or officers (including derivative actions), other than (i) litigation to enforce the provisions of this Agreement and (ii) counterclaims with respect to any proceeding initiated by, or on behalf of, a party to this Agreement or FSFR against Sellers;
(m) enter into or engage in any short sale or purchase, sale or grant of any option, warrant, derivative, convertible security, stock appreciation right or other similar right (including, without limitation, any put or call option or swap transaction) with respect to or having any measurement relating to any securities of the Companies;
(n) enter into any negotiations, arrangements, understanding or agreements (whether written or oral) with, or advise, finance, assist, seek to knowingly persuade or encourage, any Third Party to take any action or make any statement in connection with any of the foregoing, or make any investment in or enter into any arrangement with any other person that engages, or offers or proposes to engage, in any of the foregoing, or otherwise take or cause any action or make any statement inconsistent with any of the foregoing; or
(o) take any action challenging the validity or enforceability of this Agreement, or make or in any way advance any request or proposal that the Company, FSFR, the Company Board or the FSFR Board amend, modify or waive any provision of this AgreementMerger.
Appears in 5 contracts
Samples: Consent and Voting Agreement (Global Crossing LTD), Consent and Voting Agreement (Global Crossing Holdings LTD), Consent and Voting Agreement (Ipc Information Systems Inc)
Standstill. Effective from From the date of this Agreement and continuing until the later date on which a Holder beneficially owns (as such term is defined in Rule 13d-3 promulgated under the Exchange Act) a number of PubCo Shares representing less than five percent (5%) of the certification total voting power of votes for the Company 2017 Annual Meeting of Stockholders or the certification of votes for the FSFR (as defined below) 2017 Annual Meeting of Stockholders PubCo’s then issued and outstanding equity interests (the “Standstill Period”), except to the extent expressly permitted by the terms of this Agreement, none of the Sellers shallsuch Holder shall not, and Sellers shall cause their all of its respective controlled Subsidiaries and Affiliates not to, directly or indirectlyindirectly through another Person, unless expressly invited in any manner, alone or in concert a writing with othersthe approval of the PubCo Board:
(a) solicitenter into, or knowingly encourage or in any way engage in any solicitation ofagree to enter into, any proxies or consents or become a “participant” in a “solicitation,” directly or indirectly, as such terms are defined in Regulation 14A under the Securities Exchange Act of 1934, as amended (the “Exchange Act”) of proxies or consents (including, without limitation, any solicitation of consents that seeks to call a special meeting of stockholders or by encouraging or participating in any “withhold” or similar campaign), in each case, with respect to securities of the Company or Fifth Street Senior Floating Rate Corp. (“FSFR”) or any securities convertible or exchangeable into or exercisable for any such securities (collectively, “securities of the Companies”);
(b) make any proposal for consideration by stockholders at any annual or special meeting of the stockholders of the Company or FSFR, whether pursuant to Rule 14a-8 under the Exchange Act, either such company’s constituent documents or otherwise;
(c) knowingly advise, encourage, support, instruct or influence any person with respect to any of the matters covered by this Section 3.1 or with respect to the voting or disposition of any securities of the Companies at any annual or special meeting of stockholders of the Company or FSFR, except in accordance with Section 3.4propose, or seek or offer to do so;
(d) agree, attempt, seek enter into or propose to deposit any securities of the Companies in any voting trust or similar arrangement, or subject any securities of the Companies to any arrangement or agreement with respect to the voting thereof, except in accordance with Section 3.4;
(e) knowingly seek or encourage any person to submit nominations in furtherance of a “contested solicitation” or take other action for the election or removal of directors with respect to the Company or FSFR, including any action that is intended to, or is reasonably likely to result in, the replacement of the investment advisor of the Company or FSFR, or a modification to the terms or conditions of either the Company’s or FSFR’s investment advisory agreement;
(f) form, join in or in any way participate in a partnership, limited partnership, syndicate or other group, including, without limitation, a group as defined under Section 13(d) of the Exchange Act (except such participation related to the reasonable unwinding of any such group currently existing as of the date of this Agreement) with any person who is not identified on Schedule I hereto (any such person, a “Third Party”), with respect to any securities of the Companies or take any other action that would interfere with the ability of Sellers to vote in accordance with this Agreement;
(g) make any disclosure, communication, announcement or statement regarding any intent, purpose, plan or proposal with respect to the FSC Board of Directors (the “Company Board”), the Company investment advisor or the terms and conditions of the Company’s investment advisory agreement, the FSFR Board of Directors (the “FSFR Board”), the FSFR investment advisor or the terms and conditions of FSFR’s investment advisory agreement, the Company, FSFR, or the management, policies or affairs of either the Company or FSFR, or with respect to this Agreement, that is inconsistent with the provisions of this Agreement;
(h) effect or seek to effect, offer or propose to effect, cause or participate in, or in any way assist or facilitate any other person to effect or seek, offer or propose to effect or participate in, any tender or exchange offer, merger, consolidation, acquisition, scheme, arrangement, business combination, recapitalization, reorganization, sale or acquisition of assets, liquidation, dissolution, extraordinary dividend, significant share repurchase restructuring or other extraordinary transaction involving the Company, FSFR or either of their investment advisors, PubCo or any of their subsidiaries its Subsidiaries;
(b) initiate, knowingly encourage, make, or joint ventures in any way participate or engage in, any “solicitation” of “proxies” as such terms are used in the proxy rules of SEC to vote, or seek to advise or influence any person (other than any Permitted Transferees) with respect to the voting of, any voting securities of PubCo, in each case, other than in a manner in accordance with the recommendation of the Board and other than pursuant to Section 2.01(a) and Section 2.02(a); or
(c) publicly nominate or recommend for nomination a person for election at any shareholder meeting of the Company at which directors of the PubCo Board are to be elected, other than pursuant to Section 2.01(a) and Section 2.02(a); provided that the foregoing limitations in this Section 6.01 will (i) in no way limit the activities of any Person appointed to the PubCo Board pursuant to the terms of the Merger Agreement or this Agreement taken in his or her capacity as a director of PubCo, (ii) not require such Holder or any of their respective securities (each, an “Extraordinary Transaction”), or make any statement or disclosure regarding any intent, purpose, plan or proposal its Affiliates to vote its PubCo Shares with respect to any Extraordinary Transaction matter in any given manner or this Agreement that is inconsistent with the provisions of this Agreement, including any intent, purpose, plan or proposal that is conditioned on, or would require waiver, amendment, nullification or invalidation of, any provision of this Agreement or take any action that could require the Company or FSFR to make any public disclosure relating to any such intent, purpose, plan, proposal or condition;
(i) (i) call or seek to call or request the calling of any meeting of stockholders at either the Company or FSFR, including by written consent, (ii) seek, alone or in concert with others, representation on, or nominate any candidate to, the Company Board or the FSFR Board, all and (iii) seek the removal of any member of cease to apply to the Company Shareholder in the event the PubCo Board or the FSFR Board, has more than five (iv5) seek, alone or in concert with others, or support any Third Party in seeking, to replace the investment advisor of the Company or the investment advisor of FSFR, (v) solicit consents from the Company or FSFR stockholders or otherwise act or seek to act by written consent, (vi) conduct a referendum of the Company or FSFR stockholders or (vii) make a request for any stockholders list or any other books and records in Sellers’ capacity as a Company or FSFR stockholder;
(j) purchase or cause to be purchased or otherwise acquire or agree to acquire beneficial ownership of any securities issued by the Company or FSFR, or any securities convertible into or exchangeable for securities issued by the Company or FSFR;
(k) sell, offer to sell, give, pledge, grant a security interest in, encumber, assign, grant any option for the sale of or otherwise transfer or dispose of (each, a “Transfer”) any securities issued by the Company and/or any securities convertible into or exchangeable for securities issued by the Company, unless any Buyer fails to timely perform each of its obligations under Section 1.2(b), Section 1.3(c) and/or Section 1.3(d)(i) of this Agreement;
(l) institute, solicit or join, as a party, or knowingly assist any other person in instituting, soliciting or joining, any litigation, arbitration or other proceeding against the Company or FSFR or any of their current or former directors or officers (including derivative actions), other than (i) litigation to enforce the provisions of this Agreement and (ii) counterclaims with respect to any proceeding initiated by, or on behalf of, a party to this Agreement or FSFR against Sellers;
(m) enter into or engage in any short sale or purchase, sale or grant of any option, warrant, derivative, convertible security, stock appreciation right or other similar right (including, without limitation, any put or call option or swap transaction) with respect to or having any measurement relating to any securities of the Companies;
(n) enter into any negotiations, arrangements, understanding or agreements (whether written or oral) with, or advise, finance, assist, seek to knowingly persuade or encourage, any Third Party to take any action or make any statement in connection with any of the foregoing, or make any investment in or enter into any arrangement with any other person that engages, or offers or proposes to engage, in any of the foregoing, or otherwise take or cause any action or make any statement inconsistent with any of the foregoing; or
(o) take any action challenging the validity or enforceability of this Agreement, or make or in any way advance any request or proposal that the Company, FSFR, the Company Board or the FSFR Board amend, modify or waive any provision of this Agreementmembers.
Appears in 5 contracts
Samples: Agreement and Plan of Reorganization (Artemis Strategic Investment Corp), Agreement and Plan of Reorganization (Artemis Strategic Investment Corp), Agreement and Plan of Reorganization (Artemis Strategic Investment Corp)
Standstill. Effective from Until the earlier of (a) December 31, 2022 and (b) the date of this Agreement and continuing until the later on which stockholders of the certification Company are first permitted pursuant to the advance notice provisions under the bylaws of votes for the Company 2017 Annual Meeting of Stockholders or to submit proposals to be included in the certification of votes for the FSFR (as defined below) 2017 Annual Meeting of Stockholders (the “Standstill Period”), except Company’s proxy statement relating to the extent expressly permitted by the terms 2023 annual meeting of this Agreement, none stockholders of the Sellers shallCompany, CCOC, CLNY and Sellers shall cause their respective controlled Affiliates not toshall not, and shall ensure that their respective Representatives acting at their direction or on their behalf do not, directly or indirectly, in any manner, alone without the prior written invitation or in concert with othersconsent of the Board of Directors:
(a) solicitmake, or knowingly encourage or in any way engage in any solicitation ofparticipate in, any proxies or consents or become a “participant” in a “solicitation,” directly or indirectly, any “solicitation” (as such terms are term is defined in Regulation 14A Rule 14a-1 under the Securities Exchange Act of 1934, as amended (the “Exchange Act”) of proxies or consents (including, without limitation, any solicitation of consents that seeks to call a special meeting of stockholders or by encouraging or participating in any “withhold” or similar campaign), in each caseincluding any otherwise exempt solicitation pursuant to Rule 14a-2(b) under the Exchange Act, with respect to securities of the Company vote or Fifth Street Senior Floating Rate Corp. (“FSFR”) or refrain from voting any securities convertible or exchangeable into or exercisable for any such securities (collectively, “securities of the Companies”)Securities;
(b) make any director nomination or shareholder proposal for consideration by stockholders at any annual or special meeting of the stockholders of the Company or FSFR, whether pursuant to Rule 14a-8 under the Exchange Act, either such company’s constituent documents or otherwise;
(c) knowingly advise, encourage, support, instruct or influence any person with respect to any of the matters covered by this Section 3.1 or with respect to the voting or disposition of any securities of the Companies at any annual or special meeting of stockholders of the Company or FSFR, except in accordance with Section 3.4, or seek to do so;
(d) agree, attempt, seek or propose to deposit any securities of the Companies in any voting trust or similar arrangement, or subject any securities of the Companies to any arrangement or agreement with respect to the voting thereof, except in accordance with Section 3.4;
(e) knowingly seek or encourage any person to submit nominations in furtherance of a “contested solicitation” or take other action for the election or removal of directors with respect to the Company or FSFRthe Board of Directors;
(c) act alone or with others to seek to control, including any action that is intended to, change or is reasonably likely to result in, the replacement of the investment advisor of influence the Company or FSFRany of its subsidiaries, or its or their respective management, operations or boards of directors, excluding any subsidiary in which an Other CLNY Fund has a modification then current ownership interest or any assets of any such subsidiary;
(d) form or join a group (within the meaning of Section 13(d)(3) of the Exchange Act) with any Person(s) in connection with the taking of actions set forth in this Section 3.4, or act together with any Person or group in taking any such actions;
(e) act, whether alone or with others, to propose or seek to propose, or solicit or negotiate with any Person with respect to, any merger, business combination, tender or exchange offer, restructuring, recapitalization, liquidation or similar transaction of or involving, or any sale or acquisition of all or a substantial part of the terms or conditions of either consolidated assets of, the Company’s or FSFR’s investment advisory agreement;
(f) form, join in or in deposit any way participate Securities in a partnership, limited partnership, syndicate voting trust or other group, including, without limitation, a group as defined under Section 13(d) of the Exchange Act (except such participation related to the reasonable unwinding of similar arrangement or enter into or subject any such group currently existing as of the date of this Agreement) with any person who is not identified on Schedule I hereto (any such person, a “Third Party”), with respect Securities to any securities of the Companies voting agreement, pooling arrangement or take any other action that would interfere with the ability of Sellers to vote in accordance with this Agreementsimilar arrangement;
(g) make any disclosure, communication, announcement or statement regarding any intent, purpose, plan or proposal with respect to the FSC Board of Directors (the “Company Board”), the Company investment advisor or the terms and conditions of the Company’s investment advisory agreement, the FSFR Board of Directors (the “FSFR Board”), the FSFR investment advisor or the terms and conditions of FSFR’s investment advisory agreement, the Company, FSFR, or the management, policies or affairs of either the Company or FSFR, or with respect to this Agreement, that is inconsistent with the provisions of this Agreement;
(h) effect or seek to effect, offer or propose to effect, cause or participate in, or in any way assist or facilitate any other person to effect or seek, offer or propose to effect or participate in, any tender or exchange offer, merger, consolidation, acquisition, scheme, arrangement, business combination, recapitalization, reorganization, sale or acquisition of assets, liquidation, dissolution, extraordinary dividend, significant share repurchase or other extraordinary transaction involving the Company, FSFR or either of their investment advisors, or any of their subsidiaries or joint ventures or any of their respective securities (each, an “Extraordinary Transaction”), or make any statement or disclosure regarding any intent, purpose, plan or proposal with respect to any Extraordinary Transaction or this Agreement that is inconsistent with the provisions of this Agreement, including any intent, purpose, plan or proposal that is conditioned on, or would require waiver, amendment, nullification or invalidation of, any provision of this Agreement or take any action that could require the Company or FSFR to make any public disclosure relating to any such intent, purpose, plan, proposal or condition;
(i) (i) call or seek to call or request the calling of any meeting of stockholders at either the Company or FSFR, including by written consent, (ii) seek, alone or in concert with others, representation on, or nominate any candidate to, the Company Board or the FSFR Board, (iii) seek the removal of any member of the Company Board or the FSFR Board, (iv) seek, alone or in concert with others, or support any Third Party in seeking, to replace the investment advisor of the Company or the investment advisor of FSFR, (v) solicit consents from the Company or FSFR stockholders or otherwise act or seek to act by written consent, (vi) conduct a referendum of the Company or FSFR stockholders or (vii) make a request for any stockholders list or any other books and records in Sellers’ capacity as a Company or FSFR stockholder;
(j) purchase or cause to be purchased or otherwise acquire or agree to acquire beneficial ownership of any securities issued by the Company or FSFR, or any securities convertible into or exchangeable for securities issued by the Company or FSFR;
(k) sell, offer to sell, give, pledge, grant a security interest in, encumber, assign, grant any option for the sale of or otherwise transfer or dispose of (each, a “Transfer”) any securities issued by the Company and/or any securities convertible into or exchangeable for securities issued by the Company, unless any Buyer fails to timely perform each of its obligations under Section 1.2(b), Section 1.3(c) and/or Section 1.3(d)(i) of this Agreement;
(l) institute, solicit or join, as a party, or knowingly assist any other person in instituting, soliciting or joining, any litigation, arbitration or other proceeding against the Company or FSFR or any of their current or former directors or officers (including derivative actions), other than (i) litigation to enforce the provisions of this Agreement and (ii) counterclaims with respect to any proceeding initiated by, or on behalf of, a party to this Agreement or FSFR against Sellers;
(m) enter into or engage in any short sale or any purchase, sale or grant of any option, warrant, derivative, convertible security, stock appreciation right or other similar right (including, without limitation, including any put or call option or swap “swap” transaction) with respect to any security (other than a broad-based market basket or having index) that relates to or derives any measurement relating to any securities significant part of its value from a decline in the market price or value of the CompaniesCapital Stock;
(nh) enter into intentionally act as a financing source for any negotiations, arrangements, understanding or agreements (whether written or oral) with, or advise, finance, assist, seek to knowingly persuade or encourage, any Third Party to take any action or make any statement other Person in connection with any of the foregoing;
(i) take any action in pursuit of any of the types of matters set forth in this Section 3.4 that is reasonably likely to cause or require the Company or any of its subsidiaries to make a public announcement regarding any of the types of matters set forth in this Section 3.4 or in response thereto;
(j) disclose any intention, plan or make any investment in arrangement, or enter into any arrangement negotiations, arrangements or understandings with any other person that engagesthird party, or offers or proposes to engage, in any of which are inconsistent with the foregoing; provided, however, that any disclosure by CCOC or otherwise take its Affiliates of whether or cause any action not it intends to tender CCOC Shares or make any statement inconsistent how it intends to exercise its voting rights with any respect thereto to the extent required for such Persons to comply with applicable securities Laws in response to a publicly disclosed third-party proposal with respect to the Company or its Capital Stock shall not be deemed a breach of the foregoingthis clause (j); or
(ok) take make any action challenging the validity or enforceability of this Agreement, or make or in any way advance any public request or proposal that the Company, FSFR, to the Company Board or the FSFR Board amendany of its subsidiaries or their respective agents, modify representatives or advisors, directly or indirectly, to amend or waive any provision of Section 3.2, Section 3.3 or this AgreementSection 3.4. Notwithstanding anything to the contrary contained herein, (i) CCOC or CLNY or their respective representatives may make a confidential proposal to the Board of Directors, so long as such proposal could not reasonably be expected to require CLNY, the Company or their respective Affiliates to make a public disclosure thereof and (ii) CCOC and its Affiliates may sell, transfer, convey or otherwise dispose of the CCOC Shares. In addition, notwithstanding the foregoing, the restrictions set forth in this Section 3.4 will terminate and be of no further force and effect (i) upon (x) the sale of all or substantially all of the Company’s assets or (y) the issuance of securities or obligations representing or convertible into, directly or indirectly, more than fifty percent (50%) of the Class A Common Stock (or any successor security) (or of any subsidiary or Affiliate representing all or substantially all of the Company’s consolidated assets), in each case to an unaffiliated third-party, or (ii) if the Company files, or a voluntary or involuntary proceeding is initiated by or against the Company, for protection pursuant to applicable bankruptcy or similar laws for the protection of debtors (and, in the case of any such involuntary proceeding, such proceeding shall not have been vacated, discharged, stayed or bonded pending appeal within sixty (60) days from the entry thereof).
Appears in 5 contracts
Samples: Stockholders Agreement (Colony Capital, Inc.), Stockholders Agreement (Colony Credit Real Estate, Inc.), Termination Agreement (Colony Capital, Inc.)
Standstill. Effective from During the date of this Agreement and continuing until the later Standstill Period, any Holder that together with its Affiliates owns 25% or more of the certification issued and outstanding shares of votes for Common Stock shall not:
(a) directly or indirectly, purchase or otherwise acquire, or propose or offer to purchase or otherwise acquire, any Equity Securities whether by tender offer, market purchase, privately negotiated purchase, Business Combination or otherwise, if, immediately after such purchase or acquisition, the Holder Interest of such Holder would equal or exceed the Initial Percentage;
(b) directly or indirectly propose to the Company 2017 Annual Meeting of Stockholders or the certification of votes for the FSFR any Person a Business Combination;
(as defined belowc) 2017 Annual Meeting of Stockholders (the “Standstill Period”)make, except to the extent expressly permitted by the terms of this Agreement, none of the Sellers shall, and Sellers shall cause their respective controlled Affiliates not toor in any way participate, directly or indirectly, in any manner, alone or in concert with others:
"solicitation" of "proxies" to vote (a) solicit, or knowingly encourage or in any way engage in any solicitation of, any proxies or consents or become a “participant” in a “solicitation,” directly or indirectly, as such terms are defined used in Regulation 14A the rules promulgated by the Commission under the Securities Exchange Act of 1934, as amended (the “Exchange Act”Section 14(a) of proxies or consents (including, without limitation, any solicitation of consents that seeks to call a special meeting of stockholders or by encouraging or participating in any “withhold” or similar campaign), in each case, with respect to securities of the Company or Fifth Street Senior Floating Rate Corp. (“FSFR”) or any securities convertible or exchangeable into or exercisable for any such securities (collectively, “securities of the Companies”);
(b) make any proposal for consideration by stockholders at any annual or special meeting of the stockholders of the Company or FSFR, whether pursuant to Rule 14a-8 under the Exchange Act, either such company’s constituent documents ) or otherwise;
(c) knowingly seek to advise, encourage, support, instruct encourage or influence any person with respect to any of the matters covered by this Section 3.1 or entity with respect to the voting or disposition of any securities shares of capital stock of the Companies at any annual Company, initiate, propose or special meeting of otherwise solicit stockholders of the Company for the approval of one or FSFR, except in accordance with Section 3.4, more stockholder proposals or seek induce or attempt to do so;induce any other Person to initiate any stockholder proposal; or
(d) agree, attempt, seek or propose to deposit any securities of the Companies in any Equity Securities into a voting trust or similar arrangement, or subject any securities of the Companies Equity Securities to any arrangement or agreement with respect to the voting thereof, except in accordance with Section 3.4;
(e) knowingly seek of such securities or encourage any person to submit nominations in furtherance of a “contested solicitation” or take other action for the election or removal of directors with respect to the Company or FSFR, including any action that is intended to, or is reasonably likely to result in, the replacement of the investment advisor of the Company or FSFR, or a modification to the terms or conditions of either the Company’s or FSFR’s investment advisory agreement;
(f) form, join in or in any way participate in a partnership, limited partnership, syndicate or other "group, including, without limitation, a group as defined under " (within the meaning of Section 13(d13(d)(3) of the Exchange Act (except such participation related to the reasonable unwinding of any such group currently existing as of the date of this AgreementAct) with any person who is not identified on Schedule I hereto (any such person, a “Third Party”), with respect to any securities of the Companies or take any Equity Securities, other action that would interfere with than as expressly set forth in Section 7 hereof. Nothing in this Section 8 shall limit the ability of Sellers PGGM Directors to vote function in accordance with this Agreement;
(g) make any disclosure, communication, announcement or statement regarding any intent, purpose, plan or proposal with respect to the FSC Board of Directors (the “Company Board”), the Company investment advisor or the terms and conditions their capacities as members of the Company’s investment advisory agreement, the FSFR Board of Directors (the “FSFR Board”), the FSFR investment advisor or the terms and conditions of FSFR’s investment advisory agreement, the Company, FSFR, or the management, policies or affairs of either the Company or FSFR, or with respect to this Agreement, that is inconsistent with the . The provisions of this Agreement;
(h) effect or seek to effect, offer or propose to effect, cause or participate in, or in any way assist or facilitate any other person to effect or seek, offer or propose to effect or participate in, any tender or exchange offer, merger, consolidation, acquisition, scheme, arrangement, business combination, recapitalization, reorganization, sale or acquisition of assets, liquidation, dissolution, extraordinary dividend, significant share repurchase or other extraordinary transaction involving the Company, FSFR or either of their investment advisors, or any of their subsidiaries or joint ventures or any of their respective securities (each, an “Extraordinary Transaction”), or make any statement or disclosure regarding any intent, purpose, plan or proposal with respect to any Extraordinary Transaction or this Agreement that is inconsistent with the provisions of this Agreement, including any intent, purpose, plan or proposal that is conditioned on, or would require waiver, amendment, nullification or invalidation of, any provision of this Agreement or take any action that could require the Company or FSFR to make any public disclosure relating to any such intent, purpose, plan, proposal or condition;
(i) (i) call or seek to call or request the calling of any meeting of stockholders at either the Company or FSFR, including by written consent, (ii) seek, alone or in concert with others, representation on, or nominate any candidate to, the Company Board or the FSFR Board, (iii) seek the removal of any member of the Company Board or the FSFR Board, (iv) seek, alone or in concert with others, or support any Third Party in seeking, to replace the investment advisor of the Company or the investment advisor of FSFR, (v) solicit consents from the Company or FSFR stockholders or otherwise act or seek to act by written consent, (vi) conduct a referendum of the Company or FSFR stockholders or (vii) make a request for any stockholders list or any other books and records in Sellers’ capacity as a Company or FSFR stockholder;
(j) purchase or cause to Section 8 may be purchased or otherwise acquire or agree to acquire beneficial ownership of any securities issued waived by the Company or FSFRonly upon the approval of a majority of the Board, or any securities convertible into or exchangeable for securities issued excluding all PGGM Directors and shall not be applicable to actions approved by the Company or FSFR;
(k) sellmajority of the Board, offer to sell, give, pledge, grant a security interest in, encumber, assign, grant any option for excluding all PGGM Directors in circumstances in which the sale of or otherwise transfer or dispose of (each, a “Transfer”) any securities issued by the Company and/or any securities convertible into or exchangeable for securities issued by the Company, unless any Buyer fails to timely perform each of its obligations PGGM Directors are "interested directors" under Section 1.2(b), Section 1.3(c) and/or Section 1.3(d)(i) of this Agreement;
(l) institute, solicit or join, as a party, or knowingly assist any other person in instituting, soliciting or joining, any litigation, arbitration or other proceeding against the Company or FSFR or any of their current or former directors or officers (including derivative actions), other than (i) litigation to enforce the provisions of this Agreement and (ii) counterclaims with respect to any proceeding initiated by, or on behalf of, a party to this Agreement or FSFR against Sellers;
(m) enter into or engage in any short sale or purchase, sale or grant of any option, warrant, derivative, convertible security, stock appreciation right or other similar right (including, without limitation, any put or call option or swap transaction) with respect to or having any measurement relating to any securities 78.140 of the Companies;
(n) enter into any negotiations, arrangements, understanding or agreements (whether written or oral) with, or advise, finance, assist, seek to knowingly persuade or encourage, any Third Party to take any action or make any statement in connection with any of the foregoing, or make any investment in or enter into any arrangement with any other person that engages, or offers or proposes to engage, in any of the foregoing, or otherwise take or cause any action or make any statement inconsistent with any of the foregoing; or
(o) take any action challenging the validity or enforceability of this Agreement, or make or in any way advance any request or proposal that the Company, FSFR, the Company Board or the FSFR Board amend, modify or waive any provision of this AgreementNevada General Corporation Law.
Appears in 4 contracts
Samples: Registration Rights and Voting Agreement (Cornerstone Properties Inc), Registration Rights and Voting Agreement (Dutch Institutional Holding Co Inc), Registration Rights and Voting Agreement (Dutch Institutional Holding Co Inc)
Standstill. Effective from (a) During the date Standstill Period, Stockholder shall not, and shall not permit its controlled Affiliates to, and, except as set forth in Section 3.01(b), shall cause each of the Investors (including for purposes of this Agreement Section 3.01 their Affiliates) not to (and continuing until Stockholder represents and warrants that the later of the certification of votes for the Company 2017 Annual Meeting of Stockholders or the certification of votes for the FSFR Investors (other than as defined belowset forth in Section 3.01(f) 2017 Annual Meeting of Stockholders (the “Standstill Period”), except with respect to the extent expressly permitted by the terms of this Agreement, none of the Sellers shallTencent, and Sellers shall cause their respective controlled Affiliates other than the Investment Company Investors as set forth in Section 3.01(b)) have agreed not to), directly or indirectly: (i) acquire, in any manner, alone offer or in concert with others:
(a) solicitpropose to acquire, or knowingly encourage agree or in any way engage in any solicitation seek to acquire, or solicit the acquisition of, any proxies by purchase or consents or become a “participant” in a “solicitation,” directly or indirectly, as such terms are defined in Regulation 14A under the Securities Exchange Act of 1934, as amended (the “Exchange Act”) of proxies or consents (including, without limitationotherwise, any solicitation Equity Interests (or beneficial ownership thereof) or commence any tender or exchange offer for any Equity Interests (or beneficial ownership thereof); provided, however, that this clause (i) shall not apply to Equity Interests or rights to acquire Equity Interests issued by the Company to Stockholder, any of consents its controlled Affiliates or any Investor as a dividend, distribution or otherwise in respect of any Shares; and provided, further, that seeks (A) any Investor who is also an officer or director of the Company shall not be in breach of this clause (i) due to call a special meeting the acquisition of stockholders or by encouraging or participating in any “withhold” or similar campaign), in each case, with respect to securities of the Company pursuant to (x) the grant or Fifth Street Senior Floating Rate Corp. vesting of any equity compensation awards duly authorized by the Company or (“FSFR”y) the exercise of any stock options, restricted stock units, or similar awards relating to any Equity Interests of the Company granted to such Investor by the Company following due authorization by the Company and (B) this clause (i) shall not prohibit an Investor from exercising its rights under the limited partnership agreement of Stockholder to acquire Shares proposed to be sold by Stockholder to prepay or repay outstanding indebtedness or to acquire interests in Stockholder proposed to be sold by any other Investor (subject to Section 3.01(d)) or any securities convertible from acquiring Shares through the pro rata distribution of Shares by Stockholder pursuant to Section 3.04; (ii) call or exchangeable into or exercisable for any such securities (collectively, “securities of the Companies”);
(b) make any proposal for consideration by stockholders at any annual or special seek to call a meeting of the stockholders of the Company or FSFR, whether pursuant to Rule 14a-8 under the Exchange Act, either such company’s constituent documents or otherwise;
(c) knowingly advise, encourage, support, instruct or influence initiate any person with respect to any of the matters covered stockholder proposal for action by this Section 3.1 or with respect to the voting or disposition of any securities of the Companies at any annual or special meeting of stockholders of the Company or FSFR, except engage in accordance with Section 3.4, the “solicitation” of “proxies” (as such terms are defined under Regulation 14A under the Exchange Act) or seek consents to do so;
(d) agree, attempt, seek or propose to deposit vote any voting securities of the Companies in any voting trust Company, including soliciting consents or similar arrangement, or subject any securities of the Companies to any arrangement or agreement taking other action with respect to the voting thereof, except in accordance with Section 3.4;
(e) knowingly seek or encourage any person to submit nominations in furtherance calling of a “contested solicitation” or take special meeting of the Company’s stockholders (other action for the election or removal of directors than with respect to nominees to the Company or FSFRBoard designated by the Company, including any action that is intended to, or is reasonably likely in each case solely for such nominees whose election to result in, the replacement of the investment advisor of the Company or FSFR, or a modification to Board has been recommended by the terms or conditions of either the Company’s or FSFR’s investment advisory agreement;
Company Board); (fiii) form, join in or in any way participate in a partnership, limited partnership, syndicate or other “group, including, without limitation, a group as defined under ” (within the meaning of Section 13(d13(d)(3) of the Exchange Act (except such participation related Act) with respect to the reasonable unwinding of Company or any such group currently existing Equity Interests (other than to the extent that Stockholder and the Investors constitute a “group” as of the date of this Agreement) hereof and other than to the extent Xx. Xxxxxx and Xx. Xxxxx, by themselves and/or with any person who is not identified on Schedule I hereto (any such personStockholder and its general partner, constitute a “Third Party”group” at any time), with respect to any securities of the Companies or take any other action that would interfere with the ability of Sellers to vote in accordance with this Agreement;
; (giv) make any disclosure, communication, announcement or statement regarding any intent, purpose, plan or proposal with respect to the FSC Board of Directors (the “Company Board”), the Company investment advisor or the terms and conditions of the Company’s investment advisory agreement, the FSFR Board of Directors (the “FSFR Board”), the FSFR investment advisor or the terms and conditions of FSFR’s investment advisory agreement, the Company, FSFR, or the management, policies or affairs of either the Company or FSFR, or with respect to this Agreement, that is inconsistent with the provisions of this Agreement;
(h) effect or seek to effect, offer or propose to effect, cause or participate in, or in any way assist or facilitate any other person to effect or seek, offer or propose to effect or participate in, any tender or exchange offer, merger, consolidation, acquisition, scheme, arrangement, business combination, recapitalization, reorganization, sale or acquisition of assets, liquidation, dissolution, extraordinary dividend, significant share repurchase or other extraordinary transaction involving the Company, FSFR or either of their investment advisors, or any of their subsidiaries or joint ventures or any of their respective securities (each, an “Extraordinary Transaction”), or make any statement or disclosure regarding any intent, purpose, plan or proposal with respect to any Extraordinary Transaction or this Agreement that is inconsistent with the provisions of this Agreement, including any intent, purpose, plan or proposal that is conditioned on, or would require waiver, amendment, nullification or invalidation of, any provision of this Agreement or take any action that could require the Company or FSFR to make any public disclosure relating to any such intent, purpose, plan, proposal or condition;
(i) (i) call or seek to call or request the calling of any meeting of stockholders at either the Company or FSFR, including by written consent, (ii) seekotherwise act, alone or in concert with others, to seek representation onon or to control or influence the management, or nominate any candidate to, the Company Board or the FSFR Board, (iii) seek the removal of any member of the Company Board or the FSFR Board, (iv) seek, alone or in concert with others, or support any Third Party in seeking, to replace the investment advisor policies of the Company or to obtain representation on the investment advisor Company Board of FSFRDirectors (other than with respect to the nomination of Xx. Xxxxxx and Xx. Xxxxx to the Company Board, as determined by the Company Board in the ordinary course); (v) solicit consents from the Company enter into or FSFR stockholders agree, offer, propose or seek (whether publicly or otherwise) to enter into, or otherwise act be involved in or seek part of, any acquisition transaction, merger or other business combination or similar transaction relating to act by written consent, (vi) conduct a referendum all or part of the Company or FSFR stockholders or (vii) make a request for any stockholders list of its Subsidiaries or any other books and records in Sellers’ capacity as a Company acquisition transaction for all or FSFR stockholder;
(j) purchase or cause to be purchased or otherwise acquire or agree to acquire beneficial ownership part of any securities issued by the assets of the Company or FSFR, or any securities convertible into or exchangeable for securities issued by the Company or FSFR;
(k) sell, offer to sell, give, pledge, grant a security interest in, encumber, assign, grant any option for the sale of or otherwise transfer or dispose of (each, a “Transfer”) any securities issued by the Company and/or any securities convertible into or exchangeable for securities issued by the Company, unless any Buyer fails to timely perform each of its obligations under Section 1.2(b), Section 1.3(c) and/or Section 1.3(d)(i) of this Agreement;
(l) institute, solicit or join, as a party, or knowingly assist any other person in instituting, soliciting or joining, any litigation, arbitration or other proceeding against the Company or FSFR Subsidiaries or any of their current respective businesses or former directors any recapitalization, restructuring, change in control or officers similar transaction involving the Company or any of its Subsidiaries; (including derivative actions)vi) request that the Company or the Company Board amend, other than (i) litigation waive or otherwise consent to enforce the provisions any action inconsistent with any provision of this Agreement Section 3.01(a) (provided, this clause (vi) shall not prohibit communications by Stockholder with the Unaffiliated Directors on a confidential basis not involving public disclosure and not requiring any public announcement by the Company); (iivii) counterclaims enter into any discussions, negotiations, arrangements or understandings with any other person with respect to any proceeding initiated by, or on behalf of, a party to this Agreement or FSFR against Sellers;
(m) enter into or engage in any short sale or purchase, sale or grant of any option, warrant, derivative, convertible security, stock appreciation right or other similar right (including, without limitation, any put or call option or swap transaction) with respect to or having any measurement relating to any securities of the Companies;
foregoing activities; (nviii) enter into any negotiations, arrangements, understanding or agreements (whether written or oral) with, or advise, finance, assist, seek to knowingly persuade or encourage, act as a financing source for or otherwise invest in any Third Party to take any action or make any statement other person in connection with any of the foregoing, or make any investment in or enter into any arrangement with any other person that engages, or offers or proposes to engage, in any of the foregoing, or otherwise take or cause any action or make ; (ix)make any statement publicly disparaging the Company, its business or its management; (x) publicly disclose through its authorized representatives any intention, plan or arrangement inconsistent with any of the foregoing; oror (xi) expressly take any initiative with respect to the Company which could require the Company to make a public announcement regarding (A) such initiative or (B) any of the foregoing activities.
(ob) take The restrictions set forth in Sections 3.01(a) and 3.01(d) shall not apply to the Investment Company Investors and their respective Affiliates; provided that such restrictions shall become applicable to any action challenging Investment Company Investor and its Affiliates if at any point such Investment Company Investor or any of its Affiliates shall in any way act in coordination with, cooperate with or otherwise form a “group” (within the validity meaning of Section 13(d)(3) of the Exchange Act) with Stockholder with respect to the Company (for the avoidance of doubt, other than any activities relating solely to the Investment Company Investors’ ownership of interests in Stockholder and their status as an Investor).
(c) Without limiting Stockholder’s obligations under Section 3.01(a), each of Xx. Xxxxxx and Xx. Xxxxx shall not, at any time, act in coordination with, cooperate with or enforceability otherwise form a “group” (within the meaning of Section 13(d)(3) of the Exchange Act) with any Investment Company Investor (or any of its Affiliates or permitted transferees under the limited partnership agreement of Stockholder) with respect to the Company (for the avoidance of doubt, other than any activities relating solely to each such person’s ownership of an interest in Stockholder and their status as an Investor).
(d) Notwithstanding anything to the contrary herein (except as provided in Section 3.01(b)), and in addition to the restrictions set forth in this AgreementSection 3.01 and otherwise herein, during the Standstill Period, no Investor shall acquire from Stockholder and/or any other Investor(s), in one or make more transactions (including any exercise of any Investor’s rights under the limited partnership agreement of Stockholder to acquire Shares proposed to be sold by Stockholder to prepay or repay outstanding indebtedness or to acquire interests in Stockholder proposed to be sold by any other Investor, or in any way advance distribution by Stockholder), any request direct or proposal that indirect beneficial ownership of or Rights with respect to any Equity Interests if such acquisition would cause such Investor and its Affiliates, in the Companyaggregate, FSFRto beneficially own, directly or indirectly, including through their pro rata interest in the Common Stock owned by Stockholder, greater than 9.9 percent of the outstanding Common Stock. For purposes of this Section 3.01, the Company Board “pro rata interest in the Common Stock owned by Stockholder” of an Investor, in the aggregate, is equal to the product of (i) the number of shares of Common Stock beneficially owned, directly or indirectly, by Stockholder, multiplied by (ii) the FSFR Board amendpercentage of the outstanding partnership interests of Stockholder beneficially owned, modify directly or waive indirectly, by such Investor, in the aggregate.
(e) Nothing in this Agreement (including any provision of definition used in this Agreement) shall be deemed to prohibit, following the Lock-Up End Date, any Investor (including in its capacity as a Holder) from entering into or performing, settling, terminating, cancelling or unwinding any hedging transaction or derivative agreement relating to the Equity Interests that establishes a “short” position with respect to Equity Interests.
(f) Notwithstanding anything in Section 3.01(a) to the contrary, during the Standstill Period, Tencent shall be permitted to acquire shares of Common Stock, subject to the following limitations: (i) under no circumstances may Tencent acquire beneficial ownership of shares of Common Stock that would result in Tencent and its Affiliates, in the aggregate, having beneficial ownership of greater than 9.9 percent of the outstanding Common Stock (including its pro rata interest in the Common Stock owned by Stockholder), (ii) subject to the limitation set forth in clause (i), Tencent may acquire beneficial ownership of additional shares of Common Stock of up to the greater of (A) 2.0 percent of the outstanding Common Stock, or (B) if at any time the Stockholder Percentage Interest is less than 24.9 percent, additional shares of Common Stock representing a percentage of the outstanding Common Stock equal to the excess of 24.9 percent over the Stockholder Percentage Interest at such time, and (iii) Tencent will vote, or cause to be voted, any shares of Common Stock which it acquires (or acquires beneficial ownership of) in accordance with the exception set forth in this Section 3.01(f) in accordance with the recommendation, if any, of a majority of the Unaffiliated Directors.
Appears in 3 contracts
Samples: Stockholders Agreement (Asac Ii Lp), Stockholders Agreement (Activision Blizzard, Inc.), Stock Purchase Agreement (Activision Blizzard, Inc.)
Standstill. Effective from (a) The Investor agrees that during the date of this Agreement and continuing until the later Voting Period, no member of the certification of votes for the Company 2017 Annual Meeting of Stockholders or the certification of votes for the FSFR (as defined below) 2017 Annual Meeting of Stockholders (the “Standstill Period”), except to the extent expressly permitted by the terms of this Agreement, none of the Sellers shall, and Sellers Investor Group shall cause their respective controlled Affiliates not to, directly or indirectly, in any manner, alone or in concert with others:
(a) solicit, or knowingly encourage or in any way engage in any solicitation of, any proxies or consents or become a “participant” in a “solicitation,” directly or indirectly, as such terms are defined in Regulation 14A under the Securities Exchange Act of 1934, as amended (the “Exchange Act”) of proxies or consents (including, without limitation, any solicitation of consents that seeks to call a special meeting of stockholders or by encouraging or participating in any “withhold” or similar campaign), in each case, with respect to securities of the Company or Fifth Street Senior Floating Rate Corp. (“FSFR”) or any securities convertible or exchangeable into or exercisable for any such securities (collectively, “securities of the Companies”);
(b) make any proposal for consideration by stockholders at any annual or special meeting of the stockholders of the Company or FSFR, whether pursuant to Rule 14a-8 under the Exchange Act, either such company’s constituent documents or otherwise;
(c) knowingly advise, encourage, support, instruct or influence any person with respect to any of the matters covered by this Section 3.1 or with respect to the voting or disposition of any securities of the Companies at any annual or special meeting of stockholders of the Company or FSFR, except in accordance with Section 3.4, or seek to do so;
(d) agree, attempt, seek or propose to deposit any securities of the Companies in any voting trust or similar arrangement, or subject any securities of the Companies to any arrangement or agreement with respect to the voting thereof, except in accordance with Section 3.4;
(e) knowingly seek or encourage any person to submit nominations in furtherance of a “contested solicitation” or take other action for the election or removal of directors with respect to the Company or FSFR, including any action that is intended to, or is reasonably likely to result in, the replacement of the investment advisor of the Company or FSFR, or a modification to the terms or conditions of either the Company’s or FSFR’s investment advisory agreement;
(f) form, join in or in any way participate in a partnership, limited partnership, syndicate or other group, including, without limitation, a group as defined under Section 13(d) of the Exchange Act (except such participation related to the reasonable unwinding of any such group currently existing as of the date of this Agreement) with any person who is not identified on Schedule I hereto (any such person, a “Third Party”), with respect to any securities of the Companies or take any other action that would interfere with the ability of Sellers to vote in accordance with this Agreement;
(g) make any disclosure, communication, announcement or statement regarding any intent, purpose, plan or proposal with respect to the FSC Board of Directors (the “Company Board”), the Company investment advisor or the terms and conditions of the Company’s investment advisory agreement, the FSFR Board of Directors (the “FSFR Board”), the FSFR investment advisor or the terms and conditions of FSFR’s investment advisory agreement, the Company, FSFR, or the management, policies or affairs of either the Company or FSFR, or with respect to this Agreement, that is inconsistent with the provisions of this Agreement;
(h) effect or seek to effect, offer or propose to effect, cause or participate in, or in any way assist or facilitate any other person to effect or seek, offer or propose to effect or participate in, any tender or exchange offer, merger, consolidation, acquisition, scheme, arrangement, business combination, recapitalization, reorganization, sale or acquisition of assets, liquidation, dissolution, extraordinary dividend, significant share repurchase or other extraordinary transaction involving the Company, FSFR or either of their investment advisors, or any of their subsidiaries or joint ventures or any of their respective securities (each, an “Extraordinary Transaction”), or make any statement or disclosure regarding any intent, purpose, plan or proposal with respect to any Extraordinary Transaction or this Agreement that is inconsistent with the provisions of this Agreement, including any intent, purpose, plan or proposal that is conditioned on, or would require waiver, amendment, nullification or invalidation of, any provision of this Agreement or take any action that could require the Company or FSFR to make any public disclosure relating to any such intent, purpose, plan, proposal or condition;
(i) (i) call or seek to call or request the calling of any meeting of stockholders at either the Company or FSFR, including by written consent, (ii) seekact, alone or in concert with others, representation onto seek to control the management, or nominate any candidate to, the Company Board or the FSFR Board, (iii) seek the removal of any member policies of the Company Board or the FSFR Board, (iv) seek, alone or in concert with others, or support any Third Party in seeking, to replace the investment advisor of the Company or the investment advisor of FSFR, (v) solicit consents from the Company or FSFR stockholders or otherwise act or seek to act by written consent, (vi) conduct a referendum of the Company or FSFR stockholders or (vii) make a request for any stockholders list or any other books and records in Sellers’ capacity as a Company or FSFR stockholderCompany;
(j) purchase or cause to be purchased or otherwise acquire or agree to acquire beneficial ownership of any securities issued by the Company or FSFR, or any securities convertible into or exchangeable for securities issued by the Company or FSFR;
(k) sell, offer to sell, give, pledge, grant a security interest in, encumber, assign, grant any option for the sale of or otherwise transfer or dispose of (each, a “Transfer”) any securities issued by the Company and/or any securities convertible into or exchangeable for securities issued by the Company, unless any Buyer fails to timely perform each of its obligations under Section 1.2(b), Section 1.3(c) and/or Section 1.3(d)(i) of this Agreement;
(l) institute, solicit or join, as a party, or knowingly assist any other person in instituting, soliciting or joining, any litigation, arbitration or other proceeding against the Company or FSFR or any of their current or former directors or officers (including derivative actions), other than (i) litigation to enforce the provisions of this Agreement and (ii) counterclaims with respect to any proceeding initiated by, or on behalf of, a party to this Agreement or FSFR against Sellers;
(m) enter into any joint venture, securities lending or engage in any short sale or purchaseoption agreement, sale or grant of any option, warrant, derivative, convertible security, stock appreciation right or other similar right (including, without limitation, any put or call option call, guarantee of loans, guarantee of profits or swap transaction) division of losses or profits, contract, arrangement or understanding with any Person with respect to or having any measurement relating to any securities of the CompaniesCompany or any Subsidiary of the Company;
(niii) enter into acquire additional shares of Voting Stock without the consent of the Board, except for the Warrant Shares;
(iv) solicit or participate in the solicitation of proxies with respect to any negotiations, arrangements, understanding or agreements (whether written or oral) withVoting Stock, or advise, finance, assist, seek to knowingly persuade advise or encourageinfluence any person with respect to the voting of any Voting Stock (other than as otherwise provided or contemplated by this Agreement);
(v) deposit any Voting Stock in a voting trust or, except as otherwise provided or contemplated herein, subject any Third Party Voting Stock to any arrangement or agreement with any third party with respect to the voting of such Voting Stock;
(vi) join a 13D Group (other than a group comprising solely of the Investor and its Affiliates) for the purpose of acquiring, holding, voting or disposing of Voting Stock or Non-Voting Convertible Securities;
(vii) take any action which would reasonably be expected to require the Company to make a public announcement regarding the possibility of a business combination or make merger involving the Company or any statement of its Subsidiaries;
(viii) publically disclose any intention, plan or arrangement inconsistent with the foregoing;
(ix) knowingly advise, assist or encourage any other Persons in connection with any of the foregoing, or make any investment in or enter into any arrangement with any other person that engages, or offers or proposes to engage, in any of the foregoing, or otherwise take or cause any action or make any statement inconsistent with any of the foregoing; or
(ox) take any action challenging the validity or enforceability of this Agreement, or make or in any way advance any request or proposal that the CompanyCompany (or its respective directors, FSFRofficers, the Company Board affiliates, employees or the FSFR Board amendagents), modify directly or indirectly, amend or waive any provision of this Section 4.9(a) in a manner that requires public disclosure of such request. Notwithstanding anything to the contrary in this Agreement, (i) the prohibitions in this Article IV shall not affect the Investor’s ability to hold the Shares, the Warrants and the Warrant Shares, (ii) the provisions of Section 4.8 and this Section 4.9 shall not prohibit any member of the Investor Group from making or disclosing any offer or proposal on a confidential basis to the Board (and, if the Board rejects that offer or proposal or fails to enter onto a binding agreement with respect to such offer or proposal within 30 days, making a public announcement regarding such offer or proposal) in connection with a potential business combination or merger transaction with Investor that would result in a Change of Control of the Company, (iii) if a Change of Control of the Company has occurred, then the provisions of Section 4.7, Section 4.8 and this Section 4.9 shall immediately terminate without further force or effect and the Company and the Investor shall be released from compliance therewith, (iv) if (x) the Company has entered into any agreement to effect a Change of Control of the Company or (y) a third party has made a public offer or proposal (including a tender or exchange offer) or publicly announced an intention to make any such offer or proposal that would, if consummated, result in a Change of Control of the Company, then, in each case in this clause (iv), the Company and the Investor shall be released from the provisions of Section 4.7, Section 4.8 and this Section 4.9 for the pendency of such agreement, offer or proposal, and (v) the provisions of Section 4.8 and this Section 4.9 shall not prohibit the Investor from disclosing the acquisition of the Shares, Warrants and Warrant Shares hereunder on Form 13D or Form 13G, provided that the Investor shall give the Company prior notice of such filing.
Appears in 3 contracts
Samples: Securities Purchase Agreement (Dialog Semiconductor PLC), Securities Purchase Agreement (Energous Corp), Securities Purchase Agreement
Standstill. Effective from (a) Until the earliest to occur of (i) 12:01 a.m. on November 27, 2019, (ii) the Company’s failure to take such action to appoint each of the Designees (or a Replacement) to serve as a director of the Company effective at the close of business on November 29, 2018, (iii) the delivery of a Slate Notice that does not state that each of the Designees will be included on the Company’s slate of nominees for the 2019 Annual Meeting and that all members of the Board have confirmed to the Company their agreement to vote in favor of the Company’s proposed slate of directors at the 2019 Annual Meeting, (iv) the Company’s failure to deliver the Slate Notice on or prior to the date of this Agreement that is 30 days prior to the advance notice deadline for making director nominations under the Company’s bylaws at the 2019 Annual Meeting, and continuing until (v) the later Company’s failure to include each of the certification Designees on the Company’s slate of votes nominees for the Company 2017 2019 Annual Meeting of Stockholders or the certification of votes for the FSFR (as defined below) 2017 Annual Meeting of Stockholders (the “Standstill Period”), except to the extent expressly permitted by the terms no member of this Agreement, none of the Sellers Third Point shall, directly or indirectly, and Sellers each member of Third Point shall cause their respective controlled Affiliates each Third Point Affiliate it controls not to, directly or indirectly, in any manner, alone or in concert with others:
(ai) solicitsolicit proxies or written consents of shareholders or conduct any other type of referendum (binding or non-binding) with respect to, or knowingly encourage or in any way engage in any solicitation from the holders of, any proxies or consents the Voting Securities (as defined below), or become a “participant” in a “solicitation,” directly or indirectly, (as such terms are term is defined in Regulation Instruction 3 to Item 4 of Schedule 14A promulgated under the Securities Exchange Act of 1934, as amended (the “Exchange Act”)) of proxies in or consents knowingly assist any person or entity not a party to this agreement (including, without limitation, any solicitation of consents that seeks to call a special meeting of stockholders or by encouraging or participating “Third Party”) in any “withholdsolicitation” of any proxy, consent or similar campaign), in each case, with respect other authority (as such terms are defined under the Exchange Act) to securities vote any shares of the Voting Securities (other than such encouragement, advice or influence that is consistent with Company or Fifth Street Senior Floating Rate Corp. (“FSFR”) or any securities convertible or exchangeable into or exercisable for any management’s recommendation in connection with such securities (collectively, “securities of the Companies”matter);
(b) make any proposal for consideration by stockholders at any annual or special meeting of the stockholders of the Company or FSFR, whether pursuant to Rule 14a-8 under the Exchange Act, either such company’s constituent documents or otherwise;
(cii) knowingly advise, encourage, support, instruct advise or influence any other person or assist any Third Party in so encouraging, assisting or influencing any person with respect to any of the matters covered by this Section 3.1 giving or with respect to the voting or disposition withholding of any securities proxy, consent or other authority to vote or in conducting any type of the Companies at any annual referendum (other than such encouragement, advice or special meeting of stockholders of the influence that is consistent with Company or FSFR, except management’s recommendation in accordance connection with Section 3.4, or seek to do sosuch matter);
(diii) agree, attempt, seek form or propose to deposit any securities of the Companies in any voting trust or similar arrangement, or subject any securities of the Companies to any arrangement or agreement with respect to the voting thereof, except in accordance with Section 3.4;
(e) knowingly seek or encourage any person to submit nominations in furtherance of a “contested solicitation” or take other action for the election or removal of directors with respect to the Company or FSFR, including any action that is intended to, or is reasonably likely to result in, the replacement of the investment advisor of the Company or FSFR, or a modification to the terms or conditions of either the Company’s or FSFR’s investment advisory agreement;
(f) form, join in or in any way participate in a partnership, limited partnership, syndicate or other group, including, without limitation, including a group “group” as defined under Section 13(d) of the Exchange Act (except such participation related to the reasonable unwinding of any such group currently existing as of the date of this Agreement) with any person who is not identified on Schedule I hereto (any such person, a “Third Party”)Act, with respect to the Voting Securities (for the avoidance of doubt, excluding any securities group composed solely of Third Point and the Companies Third Point Affiliates) or take otherwise support or participate in any other action that would interfere with the ability of Sellers to vote in accordance with this Agreement;
(g) make any disclosure, communication, announcement or statement regarding any intent, purpose, plan or proposal effort by a Third Party with respect to the FSC Board of Directors matters set forth in clauses (the “Company Board”i), the Company investment advisor (vii) or the terms and conditions (ix) herein;
(iv) present at any annual meeting or any special meeting of the Company’s investment advisory agreement, the FSFR Board of Directors (the “FSFR Board”), the FSFR investment advisor shareholders any proposal for consideration for action by shareholders or the terms and conditions of FSFR’s investment advisory agreement, the Company, FSFR, or the management, policies or affairs of either the Company or FSFR, or with respect to this Agreement, that is inconsistent with the provisions of this Agreement;
(h) effect or seek to effect, offer or propose to effect, cause or participate in, or in any way assist or facilitate any other person to effect or seek, offer or propose to effect or participate in, any tender or exchange offer, merger, consolidation, acquisition, scheme, arrangement, business combination, recapitalization, reorganization, sale or acquisition of assets, liquidation, dissolution, extraordinary dividend, significant share repurchase or other extraordinary transaction involving the Company, FSFR or either of their investment advisors, or any of their subsidiaries or joint ventures or any of their respective securities (each, an “Extraordinary Transaction”), or make any statement or disclosure regarding any intent, purpose, plan or proposal with respect to any Extraordinary Transaction or this Agreement that is inconsistent with the provisions of this Agreement, including any intent, purpose, plan or proposal that is conditioned on, or would require waiver, amendment, nullification or invalidation of, any provision of this Agreement or take any action that could require the Company or FSFR to make any public disclosure relating to any such intent, purpose, plan, proposal or condition;
(i) (i) call or seek to call or request the calling of any meeting of stockholders at either the Company or FSFR, including by written consent, (ii) seek, alone or in concert with others, representation on, or nominate any candidate to, the Company Board or the FSFR Board, (iii) seek the removal of any member of the Company Board or, except as otherwise expressly contemplated by this Agreement, propose any nominee for election to the Board or seek representation on the FSFR Board;
(v) other than in market transactions where the identity of the ultimate purchaser is not known and in underwritten widely dispersed public offerings, (iv) seeksell, alone offer or in concert with othersagree to sell directly or indirectly, through swap or support any Third Party in seekinghedging transactions or otherwise, to replace the investment advisor securities of the Company or the investment advisor of FSFR, (v) solicit consents any rights decoupled from the Company underlying securities held by Third Point to any Third Party unless such sale, offer, or FSFR stockholders agreement to sell would not knowingly result in such Third Party, together with its Affiliates, owning, controlling or otherwise act having any beneficial or seek to act other ownership interest in the aggregate of 5% or more of the shares of Common Stock outstanding at such time or would increase the beneficial or other ownership interest of any Third Party who, together with its Affiliates, has a beneficial or other ownership interest in the aggregate of 5% or more of the shares of Common Stock outstanding at such time, except in each case in a transaction approved by written consent, the Board;
(vi) conduct a referendum grant any proxy, consent or other authority to vote any Voting Securities of the Company with respect to any matters (other than to the named proxies included in the Company’s proxy card for any annual meeting or FSFR stockholders special meeting of shareholders) or deposit any Voting Securities of the Company in a voting trust or subject them to a voting agreement or other arrangement of similar effect with respect to any annual meeting except as provided in Section 3(b) below, special meeting of shareholders or action by written consent (excluding customary brokerage accounts, margin accounts, prime brokerage accounts and the like);
(vii) make a any request for any stockholders list stocklist materials or any other books and records in Sellers’ capacity as a of the Company under Section 14A:5-28 of the New Jersey Revised Statutes or FSFR stockholderotherwise;
(jviii) purchase make, or cause to be purchased made, any statement or announcement that relates to and constitutes an ad hominem attack on, or relates to and otherwise acquire criticizes or agree disparages, the Company or its business, operations or financial performance, its officers or its directors or any person who has served as an officer or director of the Company in the past, or who serves on or following the date of this Agreement as an officer, director or agent of the Company, including without limitation, (A) in any document or report filed with or furnished to acquire beneficial ownership the SEC or any other governmental agency, (B) in any press release or other publicly available format, or (C) to any shareholder, analyst, journalist or member of the media (including without limitation, in a television, radio, internet, newspaper or magazine interview) (and the Company agrees that this Section 3(a)(viii) shall apply mutatis mutandis to the Company, its subsidiaries and their respective directors and officers with respect to Third Point and its Affiliates), but nothing herein shall limit or preclude Third Point from exercising any securities issued rights under this Agreement or conveying its opinion and views to any members of the Board privately and in a manner that does not require public disclosure by the Company or FSFR, or any securities convertible into or exchangeable for securities issued by the Company or FSFRThird Point;
(k) sell, offer to sell, give, pledge, grant a security interest in, encumber, assign, grant any option for the sale of or otherwise transfer or dispose of (each, a “Transfer”) any securities issued by the Company and/or any securities convertible into or exchangeable for securities issued by the Company, unless any Buyer fails to timely perform each of its obligations under Section 1.2(b), Section 1.3(c) and/or Section 1.3(d)(i) of this Agreement;
(lix) institute, solicit or join, as a party, or knowingly assist any other person in instituting, soliciting or joining, any litigation, arbitration or other proceeding against the Company or FSFR or any of their its current or former directors or officers in their capacities as such (including derivative actions), other than (iA) litigation by Third Point to enforce the provisions of this Agreement and Agreement, (iiB) counterclaims with respect to any proceeding initiated by, or on behalf of, the Company or its Affiliates against Third Point or a party Designee, and (C) the exercise of statutory appraisal rights; provided that the foregoing shall not prevent any member of Third Point from responding to or complying with a validly issued legal process (and the Company agrees that this Agreement or FSFR against SellersSection 3(a)(ix) shall apply mutatis mutandis to the Company, its subsidiaries and their respective directors and officers with respect to Third Point and its Affiliates);
(mx) enter into without the prior written approval of the Board, separately or engage in conjunction with any other person or entity in which it is or proposes to be either a principal, partner or financing source or is acting or proposes to act as broker or agent for compensation, propose (publicly, privately or to the Company) or effect any tender offer or exchange offer, merger, acquisition, reorganization, restructuring, recapitalization or other business combination involving the Company or a material amount of the assets or businesses of the Company (an “Extraordinary Transaction”) or actively encourage, initiate or support any other Third Party in any short sale or purchasesuch activity, sale or grant of any option, warrant, derivative, convertible security, stock appreciation right or other similar right (including, without limitation, any put or call option or swap transaction) with respect to or having any measurement relating to any but nothing shall preclude Third Point from tendering its securities of the CompaniesCompany into any tender or exchange offer or otherwise voting any of its Voting Securities in any manner it determines in connection with an Extraordinary Transaction;
(nxi) purchase or cause to be purchased or otherwise acquire or agree to acquire Beneficial Ownership of any Voting Securities if in any such case, immediately after the taking of such action, Third Point would, in the aggregate, collectively beneficially own, or have an economic interest in, an amount that would exceed 9% of the then outstanding shares of Common Stock;
(xii) enter into any negotiations, arrangementsagreements, understanding arrangements or agreements (whether written or oral) with, or advise, finance, assist, seek to knowingly persuade or encourage, understandings with any Third Party with respect to take any action or make any statement the matters set forth in connection with any of the foregoing, or make any investment in or enter into any arrangement with any other person that engages, or offers or proposes to engage, in any of the foregoing, or otherwise take or cause any action or make any statement inconsistent with any of the foregoingthis Section 3; or
(oxiii) take request, directly or indirectly, any action challenging amendment or waiver of the validity foregoing in a manner that would be reasonably likely to require public disclosure by Third Point (or enforceability of this Agreement, any Third Point Affiliates) or make or in any way advance any request or proposal that the Company, FSFR, the Company Board or the FSFR Board amend, modify or waive any provision of this Agreement.
Appears in 3 contracts
Samples: Support Agreement (Strawbridge George Jr), Support Agreement (Third Point LLC), Support Agreement (Campbell Soup Co)
Standstill. Effective Each member of the Dialectic Group agrees that, from the date of this Agreement and continuing until the later one-year anniversary of the certification date of votes for the Company 2017 Annual Meeting of Stockholders or the certification of votes for the FSFR (as defined below) 2017 Annual Meeting of Stockholders (the “Standstill Period”), except to the extent expressly permitted by the terms neither it nor any of this Agreement, none of the Sellers shallits Affiliates or Associates under its control or direction will, and Sellers shall it will cause their respective controlled each of its Affiliates and Associates under its control not to, directly or indirectly, in any manner, alone or in concert with others:
(ai) solicit, or knowingly encourage or in any way engage in any solicitation of, any of proxies or consents or become a “participant” in a “solicitation,” directly or indirectly, (as such terms are defined in Regulation 14A under the Securities Exchange Act of 1934, as amended or the rules or regulations thereunder (the “Exchange Act”)) of proxies or consents (including, without limitation, any solicitation of consents that seeks to call a special meeting of stockholders, action by written consent of stockholders and any solicitation or by encouraging or participating in any “withhold” or similar campaignnomination pursuant to Rule 14a-11 under the Exchange Act), in each case, with respect to securities of the Company or Fifth Street Senior Floating Rate Corp. (“FSFR”) or any securities convertible or exchangeable into or exercisable for any such securities (collectively, “securities of the Companies”)Company;
(bii) make any proposal for consideration by stockholders at any annual or special meeting of the stockholders of the Company or FSFR, whether pursuant seek to Rule 14a-8 under the Exchange Act, either such company’s constituent documents or otherwise;
(c) knowingly advise, encourage, support, instruct support or influence any person with respect to any of the matters covered by this Section 3.1 or with respect to the voting or disposition of any securities of the Companies Company at any annual or special meeting of stockholders of the Company or FSFRstockholders, except in accordance with Section 3.4, or seek to do so4(a)(vii);
(diii) agreeform, attempt, seek join or propose in any way participate in any “group” (within the meaning of Section 13(d)(3) of the Exchange Act) with respect to the Common Stock (other than a “group” that includes all or some lesser number of the persons identified herein as part of the Dialectic Group);
(iv) deposit any securities of the Companies Common Stock in any voting trust or similar arrangement, or subject any securities of the Companies Common Stock to any arrangement or agreement with respect to the voting thereofof any Common Stock, except in accordance with Section 3.4other than any such voting trust, arrangement or agreement solely among the Dialectic Group;
(ev) knowingly control, influence or seek to control or influence the Board, other than through non public communications with the officers and directors of the Company;
(vi) seek or encourage any person to submit nominations in furtherance of a “contested solicitation” or take other action for the election or removal of directors with respect to the Company or FSFR, including any action that is intended to, solicitation or is reasonably likely nomination pursuant to result in, Rule 14a-11 under the replacement of the investment advisor of the Company or FSFR, or a modification to the terms or conditions of either the Company’s or FSFR’s investment advisory agreementExchange Act;
(f1) form, join in make any proposal for consideration by stockholders at any annual or in special meeting of stockholders or (2) make any way participate in a partnership, limited partnership, syndicate offer or other group, including, proposal (with or without limitation, a group as defined under Section 13(dconditions) of the Exchange Act (except such participation related to the reasonable unwinding of any such group currently existing as of the date of this Agreement) with any person who is not identified on Schedule I hereto (any such person, a “Third Party”), with respect to any securities of a merger, acquisition, disposition or other business combination involving the Companies or take any other action that would interfere with Dialectic Group and the ability of Sellers to vote in accordance with this AgreementCompany;
(g) make any disclosure, communication, announcement or statement regarding any intent, purpose, plan or proposal with respect to the FSC Board of Directors (the “Company Board”), the Company investment advisor or the terms and conditions of the Company’s investment advisory agreement, the FSFR Board of Directors (the “FSFR Board”), the FSFR investment advisor or the terms and conditions of FSFR’s investment advisory agreement, the Company, FSFR, or the management, policies or affairs of either the Company or FSFR, or with respect to this Agreement, that is inconsistent with the provisions of this Agreement;
(h) effect or seek to effect, offer or propose to effect, cause or participate in, or in any way assist or facilitate any other person to effect or seek, offer or propose to effect or participate in, any tender or exchange offer, merger, consolidation, acquisition, scheme, arrangement, business combination, recapitalization, reorganization, sale or acquisition of assets, liquidation, dissolution, extraordinary dividend, significant share repurchase or other extraordinary transaction involving the Company, FSFR or either of their investment advisors, or any of their subsidiaries or joint ventures or any of their respective securities (each, an “Extraordinary Transaction”), or make any statement or disclosure regarding any intent, purpose, plan or proposal with respect to any Extraordinary Transaction or this Agreement that is inconsistent with the provisions of this Agreement, including any intent, purpose, plan or proposal that is conditioned on, or would require waiver, amendment, nullification or invalidation of, any provision of this Agreement or take any action that could require the Company or FSFR to make any public disclosure relating to any such intent, purpose, plan, proposal or condition;
(i) (i) call or seek to call or request the calling of any meeting of stockholders at either the Company or FSFR, including by written consent, (iiviii) seek, alone or in concert with others, representation on, or nominate any candidate to, on the Company Board or the FSFR Board, (iii) seek the removal of any member of the Company Board or the FSFR Board, (iv) seek, alone or in concert with others, or support any Third Party in seeking, to replace the investment advisor of the Company or the investment advisor of FSFR, (v) solicit consents from the Company or FSFR stockholders or otherwise act or seek to act by written consent, (vi) conduct a referendum of the Company or FSFR stockholders or (vii) make a request for any stockholders list or any other books and records in Sellers’ capacity as a Company or FSFR stockholder;
(j) purchase or cause to be purchased or otherwise acquire or agree to acquire beneficial ownership of any securities issued by the Company or FSFR, or any securities convertible into or exchangeable for securities issued by the Company or FSFR;
(k) sell, offer to sell, give, pledge, grant a security interest in, encumber, assign, grant any option for the sale of or otherwise transfer or dispose of (each, a “Transfer”) any securities issued by the Company and/or any securities convertible into or exchangeable for securities issued by the Company, unless any Buyer fails to timely perform each of its obligations under Section 1.2(b), Section 1.3(c) and/or Section 1.3(d)(i) of this Agreement;
(l) institute, solicit or join, as a party, or knowingly assist any other person in instituting, soliciting or joining, any litigation, arbitration or other proceeding against the Company or FSFR or any of their current or former directors or officers (including derivative actions), other than (i) litigation to enforce the provisions of this Agreement and (ii) counterclaims with respect to any proceeding initiated by, or on behalf of, a party to this Agreement or FSFR against Sellers;
(m) enter into or engage in any short sale or purchase, sale or grant of any option, warrant, derivative, convertible security, stock appreciation right or other similar right (including, without limitation, any put or call option or swap transaction) with respect to or having any measurement relating to any securities of the Companies;
(n) enter into any negotiations, arrangements, understanding or agreements (whether written or oral) with, or advise, finance, assist, seek to knowingly persuade or encourage, any Third Party to take any action or make any statement in connection with any of the foregoing, or make any investment in or enter into any arrangement with any other person that engages, or offers or proposes to engage, in any of the foregoing, or otherwise take or cause any action or make any statement inconsistent with any of the foregoing; or
(oix) take any action challenging the validity or enforceability of this Agreement, or make or in any way advance any request or proposal that the Company, FSFR, the Company Board or the FSFR Board to amend, modify waive or waive terminate any provision of this Agreement, other than through non public communications with the officers and directors of the Company that do not trigger any disclosure obligation on the part of the Company or any member of the Dialectic Group; provided, however, that nothing herein will limit the ability of (1) any member of the Dialectic Group, or its respective Affiliates and Associates, except as otherwise provided in Section 3, to vote its shares of Common Stock on any matter submitted to a vote of the stockholders of the Company in such manner as it may determine in its sole discretion; (2) the Dialectic Group to announce its opposition to any Board-approved and publicly-announced proposals, including, but not limited to, a merger, acquisition, disposition of all or substantially all of the assets of the Company or other business combination or divestiture involving the Company; (3) the Dialectic Group to file a Schedule 13D/A with the Securities and Exchange Commission disclosing the execution of this Agreement and terminating their status as a group; or (4) any member of the Dialectic Group, or its respective Affiliates and Associates from taking any action as in the opinion of counsel is reasonably required to comply with applicable law (including any Federal or State securities laws, rules or regulations or the rules and regulations of any stock exchange or stock market).
Appears in 3 contracts
Samples: Nomination Agreement (Immersion Corp), Shareholder Agreement (Dialectic Capital Management, LLC), Shareholder Agreement (Immersion Corp)
Standstill. Effective (a) Each of the Shareholders hereby agrees that, from and after the date of this Agreement and continuing hereof until the later earlier of the certification Effective Time of votes for the Company 2017 Annual Meeting Merger and the termination of Stockholders the Merger Agreement, such Shareholder shall not, directly or the certification of votes for the FSFR indirectly, unless (as defined belowi) 2017 Annual Meeting of Stockholders specifically requested by Parent or (the “Standstill Period”), except to the extent ii) expressly permitted contemplated by the terms of this Agreement or the Merger Agreement:
(i) sell, none transfer, tender, pledge, encumber, assign, hypothecate, distribute, grant, gift, encumber, assign or otherwise dispose of (whether by merger, operation of Law or otherwise) (collectively, a “Transfer”), or enter into any contract, option or other agreement with respect to, or consent to, a Transfer of, the record or beneficial ownership or both or voting power, of any or all of the Sellers shallShareholder Owned Shares;
(ii) enter into any voting agreement, and Sellers shall cause their respective controlled Affiliates not proxy, consent or power of attorney with respect to, or deposit into a voting trust, the Shareholder Owned Shares;
(iii) enter into any short sale with respect to the Common Stock or substantially identical property or enter into or acquire an offsetting derivative contract with respect to the Shareholder Owned Shares or substantially identical property;
(iv) transfer any of the economic interest in the Shareholder Owned Shares or enter into any transaction that has such effect;
(v) acquire, offer to acquire, or agree to acquire, directly or indirectly, in by purchase or otherwise, any manner, alone assets of the Company or in concert with others:any subsidiary or division thereof;
(avi) solicitmake, or knowingly encourage or in any way engage in any solicitation ofparticipate in, any proxies or consents or become a “participant” in a “solicitation,” directly or indirectly, any “solicitation” of “proxies” (as such terms are defined used in Regulation 14A under the rules of the Securities and Exchange Act of 1934Commission) to vote, as amended (the “Exchange Act”) of proxies or consents (including, without limitation, seek to advise or influence any solicitation of consents that seeks to call a special meeting of stockholders or by encouraging or participating in any “withhold” or similar campaign), in each case, Person with respect to the voting of, any voting securities of the Company or Fifth Street Senior Floating Rate Corp. (“FSFR”) or including by making publicly known such Shareholder’s position on any securities convertible or exchangeable into or exercisable for any such securities (collectivelymatter presented to shareholders), “securities other than to recommend that shareholders of the Companies”)Company vote in favor of the Merger and the Merger Agreement;
(bvii) make any proposal for consideration by stockholders at any annual or special meeting of the stockholders of submit to the Company or FSFR, whether pursuant to any shareholder proposal under Rule 14a-8 under the Exchange Act, either such company’s constituent documents or otherwise;
(cviii) knowingly advise, encourage, support, instruct or influence make any person public announcement with respect to to, or submit a proposal for, or offer of (with or without conditions) any extraordinary transaction involving an acquisition of the matters covered by this Section 3.1 Company’s securities or with respect to the voting or disposition of any securities of the Companies at any annual or special meeting of stockholders of the Company or FSFR, except in accordance with Section 3.4, or seek to do soassets;
(d) agree, attempt, seek or propose to deposit any securities of the Companies in any voting trust or similar arrangement, or subject any securities of the Companies to any arrangement or agreement with respect to the voting thereof, except in accordance with Section 3.4;
(e) knowingly seek or encourage any person to submit nominations in furtherance of a “contested solicitation” or take other action for the election or removal of directors with respect to the Company or FSFR, including any action that is intended to, or is reasonably likely to result in, the replacement of the investment advisor of the Company or FSFR, or a modification to the terms or conditions of either the Company’s or FSFR’s investment advisory agreement;
(fix) form, join in or in any way participate in a partnership, limited partnership, syndicate or other “group, including, without limitation, a group ” (as defined in Section 13(d)(3) under Section 13(d) of the Exchange Act (except such participation related to the reasonable unwinding of any such group currently existing as of the date of this AgreementAct) with any person who is not identified on Schedule I hereto (any such person, a “Third Party”), with respect to any securities of the Companies or take any other action that would interfere with the ability of Sellers to vote in accordance with this Agreement;
(g) make any disclosure, communication, announcement or statement regarding any intent, purpose, plan or proposal with respect to the FSC Board of Directors (the “Company Board”), the Company investment advisor or the terms and conditions of the Company’s investment advisory agreement, the FSFR Board of Directors (the “FSFR Board”), the FSFR investment advisor or the terms and conditions of FSFR’s investment advisory agreement, the Company, FSFR, or the management, policies or affairs of either the Company or FSFR, or with respect to this Agreement, that is inconsistent with the provisions of this Agreement;
(h) effect or seek to effect, offer or propose to effect, cause or participate in, or in any way assist or facilitate any other person to effect or seek, offer or propose to effect or participate in, any tender or exchange offer, merger, consolidation, acquisition, scheme, arrangement, business combination, recapitalization, reorganization, sale or acquisition of assets, liquidation, dissolution, extraordinary dividend, significant share repurchase or other extraordinary transaction involving the Company, FSFR or either of their investment advisors, or any of their subsidiaries or joint ventures or any of their respective securities (each, an “Extraordinary Transaction”), or make any statement or disclosure regarding any intent, purpose, plan or proposal with respect to any Extraordinary Transaction or this Agreement that is inconsistent with the provisions of this Agreement, including any intent, purpose, plan or proposal that is conditioned on, or would require waiver, amendment, nullification or invalidation of, any provision of this Agreement or take any action that could require the Company or FSFR to make any public disclosure relating to any such intent, purpose, plan, proposal or condition;
(i) (i) call or seek to call or request the calling of any meeting of stockholders at either the Company or FSFR, including by written consent, (ii) seek, alone or in concert with others, representation on, or nominate any candidate to, the Company Board or the FSFR Board, (iii) seek the removal of any member of the Company Board or the FSFR Board, (iv) seek, alone or in concert with others, or support any Third Party in seeking, to replace the investment advisor of the Company or the investment advisor of FSFR, (v) solicit consents from the Company or FSFR stockholders or otherwise act or seek to act by written consent, (vi) conduct a referendum of the Company or FSFR stockholders or (vii) make a request for any stockholders list or any other books and records in Sellers’ capacity as a Company or FSFR stockholder;
(j) purchase or cause to be purchased or otherwise acquire or agree to acquire beneficial ownership of any securities issued by the Company or FSFR, or any securities convertible into or exchangeable for securities issued by the Company or FSFR;
(k) sell, offer to sell, give, pledge, grant a security interest in, encumber, assign, grant any option for the sale of or otherwise transfer or dispose of (each, a “Transfer”) any securities issued by the Company and/or any securities convertible into or exchangeable for securities issued by the Company, unless any Buyer fails to timely perform each of its obligations under Section 1.2(b), Section 1.3(c) and/or Section 1.3(d)(i) of this Agreement;
(l) institute, solicit or join, as a party, or knowingly assist any other person in instituting, soliciting or joining, any litigation, arbitration or other proceeding against the Company or FSFR or any of their current or former directors or officers (including derivative actions), other than (i) litigation to enforce the provisions of this Agreement and (ii) counterclaims with respect to any proceeding initiated by, or on behalf of, a party to this Agreement or FSFR against Sellers;
(m) enter into or engage in any short sale or purchase, sale or grant of any option, warrant, derivative, convertible security, stock appreciation right or other similar right (including, without limitation, any put or call option or swap transaction) with respect to or having any measurement relating to any securities of the Companies;
(n) enter into any negotiations, arrangements, understanding or agreements (whether written or oral) with, or advise, finance, assist, seek to knowingly persuade or encourage, any Third Party to take any action or make any statement in connection with any of the foregoing, or make any investment in or enter into any arrangement with any other person that engages, or offers or proposes to engage;
(x) seek, in any way which may be reasonably likely to require, involve or trigger public disclosure of such request pursuant to applicable Law, to have any provision of this Section 3.1 amended, modified or waived;
(xi) otherwise take, directly or indirectly, any actions with the purpose of avoiding or circumventing any provision of this Section 3.1 or which could reasonably be expected to have the effect of preventing, impeding, interfering with or adversely affecting the consummation of the transactions contemplated by the Merger Agreement, including the Merger, or such Shareholder’s ability to perform its obligations under this Agreement. Notwithstanding the foregoing, or otherwise take or cause the following Transfers are expressly permitted under this Agreement (each such Transfer, a "Permitted Transfer"): (i) a pledge of Shareholder Owned Shares required under any action or make any statement inconsistent with any of credit facility in existence on the foregoing; or
(o) take any action challenging date hereof if such transferee agrees in writing reasonably satisfactory to the validity or enforceability Parent to be bound and subject to the terms and provisions of this Agreement, (ii) Transfers to a family member of a Shareholder (or make to a trust for the benefit of a family member) or to a charitable organization if (x) the Shareholder retains voting control of the Shareholder Owned Shares so Transferred or (y) such transferee agrees in writing reasonably satisfactory to the Parent to be bound and subject to the terms and provisions of this Agreement, (iii) Transfers to a third party if the transferee agrees in writing reasonably satisfactory to the Parent to be bound and subject to the terms and provisions of this Agreement, and (iv) Transfers to the Company in such amounts as are necessary to satisfy the withholding taxes due in respect of settlement of stock options or stock grants. In the event that any Shareholder effects a Permitted Transfer (other than a Permitted Transfer described in clause (iv) of the immediately preceding sentence), including in connection with a Shareholder Owned Shares Proposal (subject to compliance with Section 3.3(b)), such Shareholder shall promptly (and in any way advance event within 24 hours after consummation thereof) notify Parent of the consummation of such Permitted Transfer and the material details thereof, including the identity of the acquiror, the price, and the date of transfer, and shall provide evidence reasonably satisfactory to Parent that such Transfer is a Permitted Transfer (including providing, if required pursuant to the terms hereof, an agreement in writing reasonably satisfactory to the Parent that the transferee agrees to be bound and subject to the terms and provisions of this Agreement).
(b) Any Transfer in violation of Section 3.1(a) shall be void. Each Shareholder agrees to authorize and request the Company to notify the Company’s transfer agent that there is a stop transfer order with respect to all of its Shareholder Owned Shares and that this Agreement places limits on the voting of its Shareholder Owned Shares.
(c) Prior to the termination of this Agreement in accordance with its terms, in the event that a Shareholder acquires record or beneficial ownership of, or the power to vote or direct the voting of, any request additional shares of Company Common Stock or proposal that other voting interests with respect to the Company, FSFRsuch Shareholder shall notify Parent promptly of such acquisition. Such shares of Company Common Stock or voting interests shall, without further action of the parties, be deemed Shareholder Owned Shares and subject to the provisions of this Agreement, and the number of shares of Company Common Stock held by such Shareholder set forth on Schedule A hereto will be deemed amended accordingly and such shares of Company Common Stock or voting interests shall automatically become subject to the terms of this Agreement.
(d) Prior to the termination of this Agreement in accordance with its terms, each Shareholder agrees that it will not bring, commence, institute, maintain, prosecute, join or voluntarily aid any Action in law or in equity, in any court or before any Government, which alleges that the execution and delivery of the Merger Agreement by the Company, or the approval of the Merger Agreement by the Company Board, breaches any fiduciary duty of the Company Board or any member thereof or which otherwise challenges the FSFR Board amend, modify or waive any provision of this Merger Agreement.
Appears in 3 contracts
Samples: Voting Agreement (Evans Hugh D), Voting Agreement (Anaren Inc), Voting Agreement (Anaren Inc)
Standstill. Effective from (a) The Purchaser agrees that, during the date of this Agreement and continuing until the later of the certification of votes for the Company 2017 Annual Meeting of Stockholders or the certification of votes for the FSFR (as defined below) 2017 Annual Meeting of Stockholders (the “Standstill Period”), except to the extent expressly permitted by the terms of this Agreement, none of the Sellers shallit shall not, and Sellers shall cause their respective controlled each of its Affiliates not to, directly or indirectly, in any manner, alone or in concert with others:others take any of the following actions without the prior consent of the Company (acting through a resolution of the Company’s directors not including any SL Directors):
(ai) solicitmake, or knowingly encourage engage in, or in any way engage in any solicitation ofparticipate in, directly or indirectly, any “solicitation” of proxies (as such terms are used in the proxy rules of the SEC but without regard to the exclusion set forth in Rule 14a-1(l)(2)(iv)) or consents to vote, or seek to advise, encourage or influence any person with respect to the voting of any securities of the Company for the election of individuals to the Board of Directors or to approve any proposals submitted to a vote of the stockholders of the Company that have not been authorized and approved, or recommended for approval, by the Board of Directors, or become a “participant” in a any contested “solicitation,” directly or indirectly, (as such terms are defined in Regulation 14A or used under the Securities Exchange Act) for the election of directors with respect to the Company, other than a “solicitation” or acting as a “participant” in support of all of the nominees of the Board of the Directors at any stockholder meeting, or make or be the proponent of any stockholder proposal (pursuant to Rule 14a-8 under the Exchange Act of 1934or otherwise);
(ii) form, as amended (the “Exchange Act”) of proxies join, encourage, influence, advise or consents (including, without limitation, in any solicitation of consents that seeks to call a special meeting of stockholders or by encouraging or participating way participate in any “withholdgroup” or similar campaign), (as such term is defined in each case, Section 13(d)(3) of the Exchange Act) with any persons who are not its Affiliates with respect to any securities of the Company or Fifth Street Senior Floating Rate Corp. (“FSFR”) otherwise in any manner agree, attempt, seek or propose to deposit any securities of the Company or any securities convertible or exchangeable into or exercisable for any such securities (collectively, “securities of the Companies”);
(b) make any proposal for consideration by stockholders at any annual or special meeting of the stockholders of the Company or FSFR, whether pursuant to Rule 14a-8 under the Exchange Act, either such company’s constituent documents or otherwise;
(c) knowingly advise, encourage, support, instruct or influence any person with respect to any of the matters covered by this Section 3.1 or with respect to the voting or disposition of any securities of the Companies at any annual or special meeting of stockholders of the Company or FSFR, except in accordance with Section 3.4, or seek to do so;
(d) agree, attempt, seek or propose to deposit any securities of the Companies in any voting trust or similar arrangement, or subject any securities of the Companies Company to any arrangement or agreement with respect to the voting thereof, except in accordance with Section 3.4as expressly permitted by this Agreement;
(eiii) knowingly seek acquire, offer or encourage any person propose to submit nominations in furtherance of a “contested solicitation” or take other action for the election or removal of directors with respect to the Company or FSFR, including any action that is intended toacquire, or is reasonably likely agree to result inacquire, directly or indirectly, whether by purchase, tender or exchange offer, through the replacement acquisition of the investment advisor control of the Company or FSFRanother person, or a modification to the terms or conditions of either the Company’s or FSFR’s investment advisory agreement;
(f) form, join in or in any way participate in by joining a partnership, limited partnership, syndicate or other group, including, without limitation, group (including any group of persons that would be treated as a group as defined single “person” under Section 13(d) of the Exchange Act Act), through swap or hedging transactions or otherwise, any securities of the Company or any rights decoupled from the underlying securities that would result in the Purchaser (except together with its Affiliates), having Beneficial Ownership of more than 19.9% in the aggregate of the shares of the Company Common Stock outstanding at such participation related time (assuming all the Notes are converted), excluding any issuance by the Company of shares of Company Common Stock or options, warrants or other rights to acquire Company Common Stock (or the exercise thereof) to any SL Director as compensation for their membership on the Board of Directors; provided that nothing herein will require any Notes or shares of Company Common Stock to be sold to the reasonable unwinding extent the Purchaser and its Affiliates, collectively, exceeds the ownership limit under this paragraph as the result of a share repurchase or any such group currently existing as other Company actions that reduces the number of outstanding shares of Company Common Stock. For purposes of this Section 4.18(a)(iii), no securities Beneficially Owned by a portfolio company of the date Purchaser or its Affiliates will be deemed to be Beneficially Owned by Purchaser or any of its Affiliates only so long as (x) such portfolio company is not an Affiliate of the Purchaser for purposes of this Agreement, (y) neither the Purchaser nor any of its Affiliates has encouraged, instructed, directed, supported, assisted or advised, or coordinated with, such portfolio company with respect to the acquisition, voting or disposition of securities of the Company by the portfolio company and (z) neither the Purchaser or any of its Affiliates is a member of a group (as such term is defined in Section 13(d)(3) of the Exchange Act) with any person who is not identified on Schedule I hereto (any such person, a “Third Party”), that portfolio company with respect to any securities of the Companies or take any other action that would interfere with the ability of Sellers to vote in accordance with this AgreementCompany;
(g) make any disclosure, communication, announcement or statement regarding any intent, purpose, plan or proposal with respect to the FSC Board of Directors (the “Company Board”), the Company investment advisor or the terms and conditions of the Company’s investment advisory agreement, the FSFR Board of Directors (the “FSFR Board”), the FSFR investment advisor or the terms and conditions of FSFR’s investment advisory agreement, the Company, FSFR, or the management, policies or affairs of either the Company or FSFR, or with respect to this Agreement, that is inconsistent with the provisions of this Agreement;
(hiv) effect or seek to effect, offer or propose to effect, cause or participate in, or in any way assist or facilitate any other person to effect or seek, offer or propose to effect or participate in, any tender or exchange offer, merger, consolidation, acquisition, scheme, scheme of arrangement, business combination, recapitalization, reorganization, sale or acquisition of all or substantially all assets, liquidation, dissolution, extraordinary dividend, significant share repurchase dissolution or other extraordinary transaction involving the Company, FSFR or either of their investment advisors, Company or any of their subsidiaries its Subsidiaries or joint ventures or any of their respective securities (each, an “Extraordinary Transaction”), or make any public statement with respect to an Extraordinary Transaction; provided, however, that this clause shall not preclude the tender by the Purchaser or disclosure any of its Affiliates of any securities of the Company into any Third Party Tender/Exchange Offer (and any related conversion of Notes to the extent required to effect such tender) or the vote by the Purchaser or any of its Affiliates of any voting securities of the Company with respect to any Extraordinary Transaction in accordance with the recommendation of the Board of Directors;
(v) (A) call or seek to call any meeting of stockholders of the Company, including by written consent, (B) seek representation on the Board of Directors, except as expressly set forth herein, (C) seek the removal of any member of the Board of Directors (other than a Purchaser Designee in accordance with Section 4.07), (D) solicit consents from stockholders or otherwise act or seek to act by written consent with respect to the Company, (E) conduct a referendum of stockholders of the Company or (F) make a request for any stockholder list or other Company books and records, whether pursuant to Section 220 of the DGCL or otherwise;
(vi) take any action in support of or make any proposal or request that constitutes: (A) controlling or changing the Board of Directors or management of the Company, including any plans or proposals to change the number or term of directors or to fill any vacancies on the Board of Directors, (B) any material change in the capitalization or dividend policy of the Company, or (C) any other material change in the Company’s management, business or corporate structure (except pursuant to any action or transaction permitted by Section 4.18(a)(iv));
(vii) (A) seeking to have the Company waive or make amendments or modifications to the Company’s certificate of incorporation or bylaws, or other actions that may impede or facilitate the acquisition of control of the Company by any person, (B) causing a class of securities of the Company to be delisted from, or to cease to be authorized to be quoted on, any securities exchange; or (C) causing a class of equity securities of the Company to become eligible for termination of registration pursuant to Section 12(g)(4) of the Exchange Act;
(viii) make any public disclosure, announcement or statement regarding any intent, purpose, plan or proposal with respect to the Board of Directors, the Company, its management, policies or affairs, any Extraordinary Transaction of its securities or assets or this Agreement that is inconsistent with the provisions of this Agreement, including any intent, purpose, plan or proposal that is conditioned on, or would require waiver, amendment, nullification or invalidation of, any provision of this Agreement or take any action that could require the Company or FSFR to make any public disclosure relating to any such intent, purpose, plan, proposal or condition;; or
(iix) (i) call enter into any discussions, negotiations, agreements or seek to call or request the calling of any meeting of stockholders at either the Company or FSFR, including by written consent, (ii) seek, alone or in concert understandings with others, representation on, or nominate any candidate to, the Company Board or the FSFR Board, (iii) seek the removal of any member of the Company Board or the FSFR Board, (iv) seek, alone or in concert with others, or support any Third Party in seeking, to replace the investment advisor of the Company or the investment advisor of FSFR, (v) solicit consents from the Company or FSFR stockholders or otherwise act or seek to act by written consent, (vi) conduct a referendum of the Company or FSFR stockholders or (vii) make a request for any stockholders list or any other books and records in Sellers’ capacity as a Company or FSFR stockholder;
(j) purchase or cause to be purchased or otherwise acquire or agree to acquire beneficial ownership of any securities issued by the Company or FSFR, or any securities convertible into or exchangeable for securities issued by the Company or FSFR;
(k) sell, offer to sell, give, pledge, grant a security interest in, encumber, assign, grant any option for the sale of or otherwise transfer or dispose of (each, a “Transfer”) any securities issued by the Company and/or any securities convertible into or exchangeable for securities issued by the Company, unless any Buyer fails to timely perform each of its obligations under Section 1.2(b), Section 1.3(c) and/or Section 1.3(d)(i) of this Agreement;
(l) institute, solicit or join, as a party, or knowingly assist any other person in instituting, soliciting or joining, any litigation, arbitration or other proceeding against the Company or FSFR or any of their current or former directors or officers (including derivative actions), other than (i) litigation to enforce the provisions of this Agreement and (ii) counterclaims with respect to any proceeding initiated by, or on behalf of, a party to this Agreement or FSFR against Sellers;
(m) enter into or engage in any short sale or purchase, sale or grant of any option, warrant, derivative, convertible security, stock appreciation right or other similar right (including, without limitation, any put or call option or swap transaction) with respect to or having any measurement relating to any securities of the Companies;
(n) enter into any negotiations, arrangements, understanding or agreements (whether written or oral) withforegoing, or advise, finance, assist, knowingly encourage or seek to knowingly persuade or encourage, any Third Party to take any action or make any statement in connection with respect to any of the foregoing.
(b) The foregoing provisions of Section 4.18(a) shall not be deemed to prohibit (i) any action that may be taken by any Purchaser Designee acting solely as a director of the Company consistent with his fiduciary duties as a director of the Company if such action does not include or result in any public announcement or disclosure by such Purchaser Designee, the Purchaser or make any investment of its Affiliates, (ii) the Purchaser or any of its Affiliates or their respective directors, executive officers, partners, employees, managing members, advisors or agents (acting in such capacity) from communicating on a confidential basis with the Company’s directors, officers or enter advisors or (iii) the Purchaser or any of its Affiliates from (A) making a confidential proposal to the Company or the Board of Directors for a negotiated transaction with the Company involving a Change in Control, (B) pursuing and entering into any arrangement such transaction with the Company and (C) taking any other person that engages, or offers or proposes to engage, actions in any furtherance of the foregoing, or otherwise take or cause any action or make any statement inconsistent with any of the foregoing; or.
(oc) take any action challenging Notwithstanding the validity foregoing provisions of Section 4.18(a) or enforceability anything in this Agreement to the contrary, the Purchaser and its Affiliates shall not be restricted from (i) acquiring securities with the prior written consent of this Agreement, or make or in any way advance any request or proposal that the Company, FSFR(ii) acquiring securities pursuant to Section 4.16, (iii) participating in rights or securities offerings conducted by the Company, (iv) receiving stock dividends or similar distributions made by the Company, (v) tendering Company Common Stock as permitted by Section 4.02 or in a Third Party Tender/Exchange Offer after the Restricted Period (or effecting any Permitted Loan or Permitted Debt Financing Transaction under Section 4.02), (vi) disposing of Company Common Stock by operation of a statutory amalgamation, statutory arrangement or other statutory procedure involving the Company Board or (vii) any conversion of the FSFR Board amend, modify Notes or waive any provision other securities acquired not in contravention of this AgreementSection 4.18.
Appears in 3 contracts
Samples: Investment Agreement (Cornerstone OnDemand Inc), Investment Agreement (Cornerstone OnDemand Inc), Investment Agreement (Cornerstone OnDemand Inc)
Standstill. Effective Until the termination of this Agreement in accordance with its terms, the Shareholder shall and shall cause its Affiliates not to (a) subject to the Company’s compliance with the last sentence of this Section 1.1, solicit proxies, announce an intention to or continue any announced intention to solicit proxies, from shareholders of the Company in respect of the election of the Shareholder’s nominees as members of the board of directors of the Company (or support the efforts of any other Person in doing so (other than the Company)) or (b) solicit, negotiate or otherwise knowing facilitate or knowingly encourage directly or indirectly, any Acquisition Proposal or (c) directly or indirectly acquire any securities, business or assets of the Company or any business, assets or securities of its Subsidiaries or (d) sell, transfer, assign, pledge, hypothecate, tender, encumber or otherwise dispose of or limit its right to vote the Securities, or agree to do any of the foregoing (or Beneficial Ownership thereof) (each a, “Transfer”) (i) pursuant to an Acquisition Proposal or (ii) through any transaction or series of related transactions to (A) other than through trades over NASDAQ or any securities exchange or market on which the Securities are traded, any Person more than 5% of the outstanding Common Stock of the Company (“Person”, for purposes of this clause (d)(ii)(A), includes any Person and any other Person known by the Shareholder to be an Affiliate of such first Person) or (B) any Subsidiary of Shareholder unless, in the case of this clause (c)(ii), such Person to which any of such Securities or any interest in any of such Securities is Transferred shall have executed and delivered to Parent a counterpart to this Agreement pursuant to which such Person shall be bound by all of the terms and provisions of this Agreement. The Company, by its execution and delivery to the Shareholder of a copy of this Agreement, (1) agrees that, prior to the consummation of the Merger or the termination of the Merger Agreement, it will not call an annual or special meeting for the election of directors and, in the event that the Merger Agreement is terminated, it will call an annual or special meeting for the election of directors to be held on a date not earlier than 60 days nor later than 90 days after the date of termination of the Merger Agreement, (2) represents and warrants to the Shareholder that, for the purposes of this sentence, this Agreement has been duly executed and delivered by the Company and, assuming the due authorization, execution and delivery by the Company, this agreement of the Company contained in this sentence constitutes a legal, valid and binding obligation of the Company, enforceable against the Company in accordance with its terms (except to the extent that enforceability may be limited by applicable bankruptcy, insolvency, moratorium, reorganization or similar Laws affecting the enforcement of creditors’ rights generally or by general principles of equity) and (3) understands and acknowledges that the Shareholder is entering into this Agreement in reliance upon the Company’s execution and delivery of this Agreement and continuing until the later of the certification of votes for the Company 2017 Annual Meeting of Stockholders or the certification of votes for the FSFR (as defined below) 2017 Annual Meeting of Stockholders (the “Standstill Period”)covenants, except to the extent expressly permitted by the terms of this Agreement, none of the Sellers shall, representations and Sellers shall cause their respective controlled Affiliates not to, directly or indirectly, in any manner, alone or in concert with others:
(a) solicit, or knowingly encourage or in any way engage in any solicitation of, any proxies or consents or become a “participant” in a “solicitation,” directly or indirectly, as such terms are defined in Regulation 14A under the Securities Exchange Act of 1934, as amended (the “Exchange Act”) of proxies or consents (including, without limitation, any solicitation of consents that seeks to call a special meeting of stockholders or by encouraging or participating in any “withhold” or similar campaign), in each case, with respect to securities warranties of the Company or Fifth Street Senior Floating Rate Corp. (“FSFR”) or any securities convertible or exchangeable into or exercisable for any such securities (collectively, “securities of the Companies”);
(b) make any proposal for consideration by stockholders at any annual or special meeting of the stockholders of the Company or FSFR, whether pursuant to Rule 14a-8 under the Exchange Act, either such company’s constituent documents or otherwise;
(c) knowingly advise, encourage, support, instruct or influence any person with respect to any of the matters covered by set forth in this Section 3.1 or with respect to the voting or disposition of any securities of the Companies at any annual or special meeting of stockholders of the Company or FSFR, except in accordance with Section 3.4, or seek to do so;
(d) agree, attempt, seek or propose to deposit any securities of the Companies in any voting trust or similar arrangement, or subject any securities of the Companies to any arrangement or agreement with respect to the voting thereof, except in accordance with Section 3.4;
(e) knowingly seek or encourage any person to submit nominations in furtherance of a “contested solicitation” or take other action for the election or removal of directors with respect to the Company or FSFR, including any action that is intended to, or is reasonably likely to result in, the replacement of the investment advisor of the Company or FSFR, or a modification to the terms or conditions of either the Company’s or FSFR’s investment advisory agreement;
(f) form, join in or in any way participate in a partnership, limited partnership, syndicate or other group, including, without limitation, a group as defined under Section 13(d) of the Exchange Act (except such participation related to the reasonable unwinding of any such group currently existing as of the date of this Agreement) with any person who is not identified on Schedule I hereto (any such person, a “Third Party”), with respect to any securities of the Companies or take any other action that would interfere with the ability of Sellers to vote in accordance with this Agreement;
(g) make any disclosure, communication, announcement or statement regarding any intent, purpose, plan or proposal with respect to the FSC Board of Directors (the “Company Board”), the Company investment advisor or the terms and conditions of the Company’s investment advisory agreement, the FSFR Board of Directors (the “FSFR Board”), the FSFR investment advisor or the terms and conditions of FSFR’s investment advisory agreement, the Company, FSFR, or the management, policies or affairs of either the Company or FSFR, or with respect to this Agreement, that is inconsistent with the provisions of this Agreement;
(h) effect or seek to effect, offer or propose to effect, cause or participate in, or in any way assist or facilitate any other person to effect or seek, offer or propose to effect or participate in, any tender or exchange offer, merger, consolidation, acquisition, scheme, arrangement, business combination, recapitalization, reorganization, sale or acquisition of assets, liquidation, dissolution, extraordinary dividend, significant share repurchase or other extraordinary transaction involving the Company, FSFR or either of their investment advisors, or any of their subsidiaries or joint ventures or any of their respective securities (each, an “Extraordinary Transaction”), or make any statement or disclosure regarding any intent, purpose, plan or proposal with respect to any Extraordinary Transaction or this Agreement that is inconsistent with the provisions of this Agreement, including any intent, purpose, plan or proposal that is conditioned on, or would require waiver, amendment, nullification or invalidation of, any provision of this Agreement or take any action that could require the Company or FSFR to make any public disclosure relating to any such intent, purpose, plan, proposal or condition;
(i) (i) call or seek to call or request the calling of any meeting of stockholders at either the Company or FSFR, including by written consent, (ii) seek, alone or in concert with others, representation on, or nominate any candidate to, the Company Board or the FSFR Board, (iii) seek the removal of any member of the Company Board or the FSFR Board, (iv) seek, alone or in concert with others, or support any Third Party in seeking, to replace the investment advisor of the Company or the investment advisor of FSFR, (v) solicit consents from the Company or FSFR stockholders or otherwise act or seek to act by written consent, (vi) conduct a referendum of the Company or FSFR stockholders or (vii) make a request for any stockholders list or any other books and records in Sellers’ capacity as a Company or FSFR stockholder;
(j) purchase or cause to be purchased or otherwise acquire or agree to acquire beneficial ownership of any securities issued by the Company or FSFR, or any securities convertible into or exchangeable for securities issued by the Company or FSFR;
(k) sell, offer to sell, give, pledge, grant a security interest in, encumber, assign, grant any option for the sale of or otherwise transfer or dispose of (each, a “Transfer”) any securities issued by the Company and/or any securities convertible into or exchangeable for securities issued by the Company, unless any Buyer fails to timely perform each of its obligations under Section 1.2(b), Section 1.3(c) and/or Section 1.3(d)(i) of this Agreement;
(l) institute, solicit or join, as a party, or knowingly assist any other person in instituting, soliciting or joining, any litigation, arbitration or other proceeding against the Company or FSFR or any of their current or former directors or officers (including derivative actions), other than (i) litigation to enforce the provisions of this Agreement and (ii) counterclaims with respect to any proceeding initiated by, or on behalf of, a party to this Agreement or FSFR against Sellers;
(m) enter into or engage in any short sale or purchase, sale or grant of any option, warrant, derivative, convertible security, stock appreciation right or other similar right (including, without limitation, any put or call option or swap transaction) with respect to or having any measurement relating to any securities of the Companies;
(n) enter into any negotiations, arrangements, understanding or agreements (whether written or oral) with, or advise, finance, assist, seek to knowingly persuade or encourage, any Third Party to take any action or make any statement in connection with any of the foregoing, or make any investment in or enter into any arrangement with any other person that engages, or offers or proposes to engage, in any of the foregoing, or otherwise take or cause any action or make any statement inconsistent with any of the foregoing; or
(o) take any action challenging the validity or enforceability of this Agreement, or make or in any way advance any request or proposal that the Company, FSFR, the Company Board or the FSFR Board amend, modify or waive any provision of this Agreementlast sentence.
Appears in 3 contracts
Samples: Merger Agreement (Ingredion Inc), Merger Agreement (Penford Corp), Voting and Support Agreement (Penford Corp)
Standstill. Effective The Shareholder covenants and agrees with VCIF that, from the date hereof through the termination of this Agreement pursuant to Section 8, it will not, and continuing until will cause its respective principals, directors, general partners, members, officers, employees, agents (in each case, acting on the later of the certification of votes for the Company 2017 Annual Meeting of Stockholders or the certification of votes for the FSFR Shareholder’s behalf), affiliated persons (as defined belowin the Investment Company Act) 2017 Annual Meeting and Representatives under the Shareholder’s control, and any other Affiliates of Stockholders the Shareholder (all such Persons, collectively, the “Standstill PeriodShareholder Entities”), except to the extent expressly permitted by the terms of this Agreement, none of the Sellers shall, and Sellers shall cause their respective controlled Affiliates not to, directly or indirectly, in any manner, alone or in concert with othersother Persons (including by directing, requesting or suggesting that any other Person take any of the actions set forth below), unless specifically permitted in writing in advance by VCIF, take any of the actions with respect to VCIF as set forth below:
(a) soliciteffect, seek, offer, engage in, propose (whether publicly or otherwise and whether or not subject to conditions) or cause, participate in or act to, or knowingly encourage assist any other Person to effect, seek, engage in, offer or propose (whether publicly or otherwise) or cause, participate in or act to:
(i) any way engage in any solicitation of, any proxies or consents “solicitation” of “proxies” or become a “participant” in a any such “solicitation,” directly or indirectly, as such terms are defined in Regulation 14A under the Securities Exchange Act of 1934, as amended (the “Exchange Act”, including any otherwise exempt solicitation pursuant to clause (iv) of proxies or consents (including, without limitation, Rule 14a-1(l)(2) and including any otherwise exempt solicitation of consents that seeks pursuant to call a special meeting of stockholders or by encouraging or participating in any “withhold” or similar campaignRule 14a-2(b), in each case, with respect to securities of VCIF (including, without limitation, any solicitation of consents to act by written consent or call a special meeting of shareholders);
(ii) knowingly encourage or advise any other Person or knowingly assist or act to assist any Person in so encouraging or advising any Person with respect to the Company giving or Fifth Street Senior Floating Rate Corp. withholding of any proxy, consent or other authority to vote (“FSFR”other than such encouragement or advice that is consistent with the VCIF Board’s or Xxxxxxx’x recommendation with respect to VCIF in connection with such matter or encouragement or advice solely amongst the Shareholder Entities) with respect to VCIF;
(iii) engage, directly or indirectly, in any short sale that derives all or substantially all of its value from a decline in the market price of VCIF (for the avoidance of doubt, the Shareholder and its Affiliates may short-sell broad based indices);
(iv) any acquisition or agreement to acquire any voting or equity securities (or beneficial ownership thereof) of VCIF or direct or indirect rights or options to acquire, or instruments which are convertible into, any voting or equity securities of VCIF, or a material portion of the consolidated assets of VCIF, or any derivative securities convertible or exchangeable into contracts the value of which is directly or exercisable for indirectly tied to or derived from VCIF;
(v) any such securities tender or exchange offer, merger or other business combination involving VCIF;
(collectivelyvi) any recapitalization, “securities of the Companies”)restructuring, liquidation, dissolution or other extraordinary transaction with respect to VCIF;
(b) make form, join or in any proposal for consideration by stockholders at way participate in any annual or special meeting “group” (within the meaning of Section 13(d)(3) of the stockholders Exchange Act and Rule 13d-5(b)(1) thereunder) (other than a group that consists solely of members of the Company or FSFR, whether pursuant Shareholder Entities) with respect to Rule 14a-8 under the Exchange Act, either such company’s constituent documents or otherwiseVCIF;
(c) knowingly advise, encourage, support, instruct or influence any person with respect to any of the matters covered by this Section 3.1 or with respect to the voting or disposition of any securities of the Companies at any annual or special meeting of stockholders of the Company or FSFR, except in accordance with Section 3.4, or seek to do so;
(d) agree, attempt, seek or propose to deposit any securities of the Companies VCIF in any voting trust or similar arrangement, or subject any securities of the Companies VCIF to any arrangement or agreement with respect to the voting thereof, except in accordance with Section 3.4;
(e) knowingly seek or encourage any person to submit nominations in furtherance of a “contested solicitation” or take other action for the election or removal of directors with respect to the Company or FSFR, including any action that is intended to, or is reasonably likely to result in, the replacement of the investment advisor securities of the Company or FSFR, or a modification to the terms or conditions of either the Company’s or FSFR’s investment advisory agreement;
(f) form, join in or in any way participate in a partnership, limited partnership, syndicate or other groupVCIF, including, without limitation, a group as defined under Section 13(d) of the Exchange Act (except such participation related to the reasonable unwinding of any such group currently existing as of the date of this Agreement) with any person who is not identified on Schedule I hereto (any such person, a “Third Party”), with respect to lend any securities of VCIF to any Person for the Companies or take any other action that would interfere with the ability purpose of Sellers allowing such Person to vote such securities in accordance connection with this Agreementany shareholder vote or consent of VCIF or to sell such securities, other than any such voting trust, arrangement or agreement solely among the members of the Shareholder and its Affiliates;
(g) make any disclosure, communication, announcement or statement regarding any intent, purpose, plan or proposal with respect to the FSC Board of Directors (the “Company Board”), the Company investment advisor or the terms and conditions of the Company’s investment advisory agreement, the FSFR Board of Directors (the “FSFR Board”), the FSFR investment advisor or the terms and conditions of FSFR’s investment advisory agreement, the Company, FSFR, or the management, policies or affairs of either the Company or FSFR, or with respect to this Agreement, that is inconsistent with the provisions of this Agreement;
(h) effect or seek to effect, offer or propose to effect, cause or participate in, or in any way assist or facilitate any other person to effect or seek, offer or propose to effect or participate in, any tender or exchange offer, merger, consolidation, acquisition, scheme, arrangement, business combination, recapitalization, reorganization, sale or acquisition of assets, liquidation, dissolution, extraordinary dividend, significant share repurchase or other extraordinary transaction involving the Company, FSFR or either of their investment advisors, or any of their subsidiaries or joint ventures or any of their respective securities (each, an “Extraordinary Transaction”), or make any statement or disclosure regarding any intent, purpose, plan or proposal with respect to any Extraordinary Transaction or this Agreement that is inconsistent with the provisions of this Agreement, including any intent, purpose, plan or proposal that is conditioned on, or would require waiver, amendment, nullification or invalidation of, any provision of this Agreement or take any action that could require the Company or FSFR to make any public disclosure relating to any such intent, purpose, plan, proposal or condition;
(i) (i) call or seek to call or request the calling of any meeting of stockholders at either the Company or FSFR, including by written consent, (iid) seek, alone or in concert with others, (i) election or appointment to, or representation on, the VCIF Board, or nominate or propose the nomination of, or recommend the nomination of, any candidate toto the VCIF Board, (ii) the Company Board removal or resignation of any member of the FSFR VCIF Board, (iii) seek the removal or replacement of Xxxxxxx or any member of its Affiliates as the Company Board or the FSFR Boardinvestment adviser to VCIF, (iv) seekthe alteration, alone or in concert with othersmodification, or support any Third Party in seeking, to replace the investment advisor termination of the Company Investment Advisory Agreement, or the investment advisor of FSFR, (v) solicit consents from to knowingly encourage any such actions in clauses (i) through (iv);
(e) make any proposal for consideration by shareholders at any annual or special meeting of shareholders of VCIF (pursuant to Rule 14a-8 under the Company Exchange Act or FSFR stockholders otherwise), or otherwise act take any action (other than in accordance with this Section 6) with respect to any shareholder proposal or seek to act written consent in a manner that is not supported by written consent, the VCIF Board;
(vi) conduct a referendum of the Company or FSFR stockholders or (viif) make a request for any stockholders a shareholder list or any other books and records in Sellers’ capacity as a Company of VCIF under Delaware law or FSFR stockholderany other statutory or regulatory provision;
(jg) purchase seek to control or cause publicly influence Xxxxxxx with respect to be purchased VCIF, the VCIF Board or otherwise acquire or agree to acquire beneficial ownership policies of any securities issued by the Company or FSFR, or any securities convertible into or exchangeable for securities issued by the Company or FSFRVCIF;
(kh) sell, offer make any proposal with respect to sell, give, pledge, grant a security interest in, encumber, assign, grant any option for the sale of or otherwise transfer or dispose of (each, a “Transfer”i) any securities issued by change in the Company and/or number or term of directors or the filling of any securities convertible into vacancies on the VCIF Board, (ii) any change in the capitalization, share purchase program, dividend policy or exchangeable for securities issued by distribution policy of VCIF, (iii) any other material change in VCIF’s management, business or corporate structure with respect to VCIF, or (iv) any waiver, amendment or modification to the Company, unless any Buyer fails to timely perform each Organizational Documents of its obligations under Section 1.2(b), Section 1.3(c) and/or Section 1.3(d)(i) of this AgreementVCIF;
(l) institute, solicit or join, as a party, or knowingly assist any other person in instituting, soliciting or joining, any litigation, arbitration or other proceeding against the Company or FSFR or any of their current or former directors or officers (including derivative actions), other than (i) litigation to enforce the provisions of this Agreement and (ii) counterclaims with respect to any proceeding initiated by, or on behalf of, a party to this Agreement or FSFR against Sellers;
(m) enter into or engage in any short sale or purchase, sale or grant of any option, warrant, derivative, convertible security, stock appreciation right or other similar right (including, without limitation, any put or call option or swap transaction) with respect to or having any measurement relating to any securities of the Companies;
(n) enter into any negotiations, arrangements, understanding arrangements or agreements (whether written or oral) with, or advise, finance, assist, seek understandings with any Person with respect to knowingly persuade or encourage, any Third Party to take any action or make any statement in connection with any of the foregoing, or make any investment in advise, knowingly assist or enter into any arrangement with any other person that engages, or offers or proposes knowingly encourage others to engage, in any of the foregoing, or otherwise take or cause any action or make any statement inconsistent with respect to any of the foregoing; or
(oj) take any action challenging the validity or enforceability of this Agreement, or make or in any way advance any publicly request or proposal (x) that the Company, FSFRVCIF, the Company VCIF Board or the FSFR Board amend, modify any of their respective Representatives amend or waive any provision of this AgreementSection 6 (including this sentence) or (y) the VCIF Board to specifically invite the Shareholder Entities to take any of the actions prohibited by this Section 6. Nothing in this Section 6 shall be deemed to prohibit the Shareholder Entities from communicating privately with the directors, officers, and advisors of VCIF (including Carlyle) so long as such private communications would not be reasonably expected to trigger public disclosure obligations for any Party.
Appears in 3 contracts
Samples: Voting, Support and Standstill Agreement (Carlyle Group Inc.), Voting, Support and Standstill Agreement (Carlyle Group Inc.), Voting, Support and Standstill Agreement (Carlyle Group Inc.)
Standstill. Effective (a) Each of the PW Group Shareholders solely on behalf of itself and its respective Affiliates and Associates, each of the Luxor Shareholders solely on behalf of itself and its respective Affiliates and Associates and each of the Xxxxxx Shareholders solely on behalf of itself and its respective Affiliates and Associates hereby severally and not jointly agrees that from the date hereof until the termination of this Agreement and continuing until the later of the certification of votes for the Company 2017 Annual Meeting of Stockholders or the certification of votes for the FSFR (as defined below) 2017 Annual Meeting of Stockholders in accordance with Section 5 (the “Standstill Covered Period”), except to the extent as expressly permitted by the terms of set forth in this Agreement, none neither it nor any of the Sellers shallits Affiliates or Associates will, and Sellers shall it will cause their respective controlled each of its Affiliates and Associates not to, directly or indirectly, indirectly in any manner, alone or in concert with others:
(ai) solicitmake, or knowingly encourage engage in, or in any way engage in any solicitation ofparticipate in, any proxies or consents or become a “participant” in a “solicitation,” directly or indirectly, any “solicitation” of proxies (as such terms are defined used in Regulation 14A under the Securities Exchange Act proxy rules of 1934, as amended (the “SEC but without regard to the exclusion set forth in Rule 14a-1(l)(2)(iv) of the Exchange Act”) of proxies or consents (includingto vote, without limitationor seek to advise, encourage or influence any solicitation of consents that seeks to call a special meeting of stockholders or by encouraging or participating in any “withhold” or similar campaign), in each case, person with respect to the voting of any securities of the Company or Fifth Street Senior Floating Rate Corp. (“FSFR”) or any securities convertible or exchangeable into or exercisable for any such securities (collectively, “securities of the CompaniesCompany”);
) for the election of individuals to the Board or to approve shareholder proposals, or become a “participant” in any contested “solicitation” for the election of directors with respect to the Company (bas such terms are defined or used under the Exchange Act) make any proposal for consideration by stockholders (other than a “solicitation” or acting as a “participant” in support of all of the nominees of the Board at any annual shareholder meeting) or special meeting make or be the proponent of the stockholders of the Company or FSFR, whether any shareholder proposal (pursuant to Rule 14a-8 under the Exchange Act, either such company’s constituent documents Act or otherwise);
(cii) knowingly adviseform, join, encourage, supportinfluence, instruct advise or influence in any person way participate in any “group” (as such term is defined in Section 13(d)(3) of the Exchange Act for purposes of this Agreement, any such group, a “Section 13(d) Group”) with any persons (other than, with respect to PW Group/Luxor/Xxxxxx Shareholders, a Section 13(d) Group that includes all or some of the persons identified on the Group 13D as of the date hereof and their Affiliates and Associates, but not including any other entities or persons not identified on the Group 13D as of the date hereof) with respect to any of the matters covered by this Section 3.1 or with respect to the voting or disposition of any securities of the Companies at any annual or special meeting of stockholders of the Company or FSFR, except otherwise in accordance with Section 3.4, or seek to do so;
(d) any manner agree, attempt, seek or propose to deposit any securities of the Companies Company in any voting trust or similar arrangement, or subject any securities of the Companies Company to any arrangement or agreement with respect to the voting thereof, except as expressly set forth in accordance with Section 3.4this Agreement;
(eiii) knowingly seek acquire, offer or encourage any person propose to submit nominations in furtherance of a “contested solicitation” or take other action for the election or removal of directors with respect to the Company or FSFR, including any action that is intended toacquire, or is reasonably likely agree to result inacquire, directly or indirectly, whether by purchase, tender or exchange offer, through the replacement acquisition of the investment advisor control of the Company or FSFRanother person, or a modification to the terms or conditions of either the Company’s or FSFR’s investment advisory agreement;
(f) form, join in or in any way participate in by joining a partnership, limited partnership, syndicate or other groupgroup (including any Section 13(d) Group), through swap or hedging transactions or otherwise, any securities of the Company or any rights decoupled from the underlying securities of the Company that (A) to the extent any of the PW Group Shareholders, the Luxor Shareholders and the Xxxxxx Shareholders remain members of a Section 13(d) Group with any of the others, would result in the PW Group/Luxor/Xxxxxx Shareholders (together with their Affiliates and Associates and any other persons with whom any of such PW Group/Luxor/Xxxxxx Shareholders constitutes a Section 13(d) Group ) having beneficial ownership, as determined in accordance with Rule 13d-3 of the Exchange Act, over more than 19.99% in the aggregate of the shares of Common Stock outstanding at such time or (B) to the extent none of the PW Group Shareholders, the Luxor Shareholders or the Xxxxxx Shareholders are members of a Section 13(d) Group with any of the others, would result in (1) with respect to the PW Group Shareholders (together with their Affiliates and Associates and any other persons with whom they may be a Section 13(d) Group) having beneficial ownership, as determined in accordance with Rule 13d-3 of the Exchange Act, over more than 8.5% in the aggregate of the shares of Common Stock outstanding at such time, (2) with respect to the Luxor Shareholders (together with their Affiliates and Associates and any other persons with whom they may be a Section 13(d) Group) having beneficial ownership, as determined in accordance with Rule 13d-3 of the Exchange Act, over more than 13.5% in the aggregate of the shares of Common Stock outstanding at such time, or (3) with respect to the Xxxxxx Shareholders (together with their Affiliates and Associates and any other persons with whom they may be a Section 13(d) Group) having beneficial ownership, as determined in accordance with Rule 13d-3 of the Exchange Act, over more than 1.0% in the aggregate of the shares of Common Stock outstanding at such time; provided that nothing herein will require Common Stock to be sold to the extent such persons, collectively with their Affiliates and Associates, exceed the ownership limit applicable to such persons under this paragraph solely as the result of a share repurchase or similar Company action that reduces the number of outstanding shares of Common Stock so long as the beneficial ownership interest of such persons, collectively with their Affiliates and Associates, do not increase thereafter (except solely as a result of further corporate actions taken by the Company), unless and until such ownership interest before and after such subsequent increase does not exceed such limitation;
(iv) effect or seek to effect (including, without limitation, a group as defined under Section 13(d) of the Exchange Act (except such participation related to the reasonable unwinding of by entering into any such group currently existing as of the date of this Agreement) discussions, negotiations, agreements or understandings whether or not legally enforceable with any person who is not identified on Schedule I hereto (any such person, a “Third Party”), with respect to any securities of the Companies or take any other action that would interfere with the ability of Sellers to vote in accordance with this Agreement;
(g) make any disclosure, communication, announcement or statement regarding any intent, purpose, plan or proposal with respect to the FSC Board of Directors (the “Company Board”), the Company investment advisor or the terms and conditions of the Company’s investment advisory agreement, the FSFR Board of Directors (the “FSFR Board”), the FSFR investment advisor or the terms and conditions of FSFR’s investment advisory agreement, the Company, FSFR, or the management, policies or affairs of either the Company or FSFR, or with respect to this Agreement, that is inconsistent with the provisions of this Agreement;
(h) effect or seek to effect, offer or propose to effect, cause or participate in, or in any way assist or facilitate any other person to effect or seek, offer or propose to effect or participate in, any tender or exchange offer, merger, consolidation, acquisition, scheme, arrangement, business combination, recapitalization, reorganization, sale or acquisition of material assets, liquidation, dissolution, extraordinary dividend, significant share repurchase dissolution or other extraordinary transaction involving the Company, FSFR or either of their investment advisors, Company or any of their its subsidiaries or joint ventures or any of their respective securities (each, an “Extraordinary Transaction”), or make any public statement with respect to an Extraordinary Transaction; provided, however, that this clause shall not (A) preclude the tender by any PW Group/Luxor/Xxxxxx Shareholders or disclosure regarding an Affiliate or an Associate thereof of any intentsecurities of the Company into any tender or exchange offer, purpose, plan or proposal vote by any PW Group/Luxor/Xxxxxx Shareholders or an Affiliate or Associate thereof of any securities of the Company with respect to any Extraordinary Transaction or this Agreement that is inconsistent with the provisions (B) prohibit any PW Group/Luxor/Xxxxxx Shareholders or Affiliate or Associate thereof from offering to purchase assets of this Agreement, including any intent, purpose, plan or proposal that is conditioned on, or would require waiver, amendment, nullification or invalidation of, any provision of this Agreement or take any action that could require the Company or FSFR to make any public disclosure relating to any if the sale of such intent, purpose, plan, proposal or condition;
(i) (i) call or seek to call or request the calling of any meeting of stockholders at either assets is initiated by the Company through an open bidding process or FSFR, including by written consent, (ii) seek, alone or in concert with others, representation on, or nominate any candidate to, from offering to purchase the securities of the Company Board or the FSFR Board, (iii) seek the removal of any if a member of the Company Board Company’s current or the FSFR Board, (iv) seek, alone or in concert with others, or support any Third Party in seeking, to replace the investment advisor of the Company or the investment advisor of FSFR, (v) solicit consents from the Company or FSFR stockholders or otherwise act or seek to act by written consent, (vi) conduct a referendum of the Company or FSFR stockholders or (vii) make a request for any stockholders list or any other books and records in Sellers’ capacity as a Company or FSFR stockholder;
(j) purchase or cause to be purchased or otherwise acquire or agree to acquire beneficial ownership of any securities issued by the Company or FSFR, or any securities convertible into or exchangeable for securities issued by the Company or FSFR;
(k) sell, offer to sell, give, pledge, grant a security interest in, encumber, assign, grant any option for the sale of or otherwise transfer or dispose of (each, a “Transfer”) any securities issued by the Company and/or any securities convertible into or exchangeable for securities issued by the Company, unless any Buyer fails to timely perform each of its obligations under Section 1.2(b), Section 1.3(c) and/or Section 1.3(d)(i) of this Agreement;
(l) institute, solicit or join, as a party, or knowingly assist any other person in instituting, soliciting or joiningprevious management, any litigationdirector or former director, arbitration or other proceeding against the Company or FSFR or any of their current Affiliates or former directors Associates has publicly offered to acquire all or officers (including derivative actions), other than (i) litigation substantially all of the equity securities of the Company in a “take private” transaction subject to enforce Rule 13e-3 promulgated under the provisions of this Agreement and (ii) counterclaims with respect to any proceeding initiated by, or on behalf of, a party to this Agreement or FSFR against SellersExchange Act;
(mv) enter into or engage in any short sale or any purchase, sale or grant of any option, warrant, derivative, convertible security, stock appreciation right right, or other similar right (including, without limitation, any put or call option or swap “swap” transaction) with respect to any security (other than a broad-based market basket or having index) that includes, relates to or derives any measurement relating to any significant part of its value from a decline in the market price or value of the securities of the CompaniesCompany (it being understood that the PW Group/Luxor/Xxxxxx Shareholders may sell or otherwise dispose of or unwind call option, swap or hedging positions they may have as of the date hereof relating to securities of the Company);
(nvi) (A) call or seek to call, alone or in concert with others, any meeting of shareholders, including by written action, (B) seek representation on, or nominate any candidate to, the Board, except as set forth herein, (C) seek the removal of any member of the Board, (D) solicit consents from shareholders or otherwise act or seek to act by written action, (E) conduct a referendum of shareholders or (F) make a request for any shareholder list or other Company books and records, whether pursuant to Section 1600 of the California Corporations Code or otherwise;
(vii) take any action in support of or make any proposal or request that constitutes: (A) advising, controlling, changing or influencing the Board or management of the Company, including any plans or proposals to change the number or term of directors or to fill any vacancies on the Board, except as set forth herein, (B) any material change in the capitalization, stock repurchase programs and practices or dividend policy of the Company, (C) any other material change in the Company’s management, business or corporate structure, (D) seeking to have the Company waive or make amendments or modifications to the Company’s Articles of Incorporation or Bylaws, or other actions that may impede or facilitate the acquisition of control of the Company by any person, (E) causing a class of securities of the Company to be delisted from, or to cease to be authorized to be quoted on, any securities exchange, or (F) causing a class of securities of the Company to become eligible for termination of registration pursuant to Section 12(g)(4) of the Exchange Act;
(viii) make any public disclosure, announcement or statement regarding any intent, purpose, plan or proposal with respect to the Board, the Company, its management, policies or affairs, any of its securities or assets or this Agreement that is inconsistent with the provisions of this Agreement;
(ix) enter into any discussions, negotiations, arrangements, understanding agreements or agreements (whether written or oral) withunderstandings with any Third Party with respect to any of the foregoing, or advise, finance, assist, knowingly encourage or seek to knowingly persuade or encourage, any Third Party to take any action or make any statement in connection with any of the foregoing, or make any investment in or enter into any arrangement with any other person that engages, or offers or proposes respect to engage, in any of the foregoing, or otherwise take or cause any action or make any statement inconsistent with any of the foregoing; or
(ox) take publicly request, directly or indirectly, any action challenging amendment or waiver of the validity or enforceability foregoing. The foregoing provisions of this AgreementSection 2(a) shall not be deemed to prohibit any of the PW Group/Luxor/Xxxxxx Shareholders or their directors, officers, partners, employees, members or make agents (acting in such capacity) from communicating privately with the Company’s directors, officers or advisors so long as such communications are not intended to, and would not reasonably be expected to, require any public disclosure of such communications.
(b) Each of the PW Group Shareholders solely on behalf of itself and its respective Affiliates and Associates, each of the Luxor Shareholders solely on behalf of itself and its respective Affiliates and Associates and each of the Xxxxxx Shareholders solely on behalf of itself and its respective Affiliates and Associates hereby severally and not jointly agrees to cause all shares of Common Stock beneficially owned by it as of the record date for the 2014 Annual Meeting to be present for quorum purposes and to be voted, at the 2014 Annual Meeting, and further agrees that at the 2014 Annual Meeting it shall (i) vote in favor of the 2014 Company Slate; (ii) vote for ratification of Ernst & Young LLP as the Company’s auditors for the 2014 fiscal year; and (iii) vote for “say on pay” resolutions recommended by the Board. At any subsequent special shareholders’ meeting (or adjournments or postponements thereof) during the Covered Period each of the PW Group Shareholders, each of the Luxor Shareholders and each of the Xxxxxx Shareholders shall cause all shares of Common Stock beneficially owned, directly or indirectly, by it as of the applicable record date to be present for quorum purposes and to be voted in favor of the election to the Board of those director nominees nominated for election by the Board and against the removal of any directors whose removal is not recommended by the Board.
(c) Nothing in this Section 2 shall prohibit or in any way advance limit any request actions that may be taken by the Nominees or proposal that the Company, FSFR, their Replacements acting solely as a director of the Company (including, without limitation, voting on any matter submitted for consideration by the Board, participating in deliberations or discussions of the Board and making suggestions or raising issues to the FSFR Board amend, modify Board) consistent with his fiduciary duties as a director of the Company (it being understood and agreed that no PW Group/Luxor/Xxxxxx Shareholder or waive any provision Affiliates or Associates thereof shall seek to do indirectly through any of this Agreementthe Nominees or their Replacements anything that would be prohibited if done by a PW Group/Luxor/Xxxxxx Shareholder or any Affiliate or Associate thereof).
Appears in 3 contracts
Samples: Shareholder Agreement (PW Partners Atlas Fund II, LP), Shareholder Agreement (Luxor Capital Group, LP), Shareholder Agreement (BJs RESTAURANTS INC)
Standstill. Effective from the date of this Agreement and continuing until the later None of the certification of votes for the Company 2017 Annual Meeting of Stockholders or the certification of votes for the FSFR Investors may (as defined below) 2017 Annual Meeting of Stockholders (the “Standstill Period”and each Investor shall cause its Affiliates and Associates that it controls, and use reasonable efforts to cause its other Affiliates and Associates, not to), except to without the extent expressly permitted by the terms of this Agreement, none prior written consent of the Sellers shall, and Sellers shall cause their respective controlled Affiliates not toBoard:
(a) publicly propose that any Investor or Qualified Stockholder or any Affiliate or Associate of any Investor or Qualified Stockholder enter into, directly or indirectly, in any mannermerger or other business combination involving Holdco or propose to purchase, alone directly or in concert with others:indirectly, a material portion of the assets of Holdco or any material subsidiary of Holdco, or make any such proposal privately if it would reasonably be expected to require Holdco to make a public announcement regarding such proposal;
(ab) solicitmake, or knowingly encourage or in any way engage in any solicitation ofparticipate in, any proxies or consents or become a “participant” in a “solicitation,” directly or indirectly, any "solicitation" of "proxies" (as such terms are used in Regulation 14A promulgated under the Exchange Act) to vote or consent with respect to any Voting Securities of Holdco or become a "participant" in any "election contest" (as such terms are defined or used in Regulation 14A under the Securities Exchange Act of 1934, as amended (the “Exchange Act”) of proxies or consents (including, without limitation, any solicitation of consents that seeks to call a special meeting of stockholders or by encouraging or participating in any “withhold” or similar campaign), in each case, with respect to securities of the Company or Fifth Street Senior Floating Rate Corp. (“FSFR”) or any securities convertible or exchangeable into or exercisable for any such securities (collectively, “securities of the Companies”);
(b) make any proposal for consideration by stockholders at any annual or special meeting of the stockholders of the Company or FSFR, whether pursuant to Rule 14a-8 14a-11 under the Exchange Act, either such company’s constituent documents or otherwise) with respect to Holdco;
(c) knowingly adviseform, encourage, support, instruct join or influence any person participate in or encourage the formation of a "group" (within the meaning of Section 13(d)(3) of the Exchange Act) with respect to any Voting Securities of the matters covered by this Section 3.1 or with respect to the voting or disposition Holdco, other than a group consisting solely of any securities of the Companies at any annual or special meeting of stockholders of the Company or FSFR, except in accordance with Section 3.4, or seek to do soInvestors and Qualified Stockholders;
(d) agree, attempt, seek or propose to deposit any securities Voting Securities of the Companies in any Holdco into a voting trust or similar arrangement, or subject any securities of the Companies such Voting Securities to any arrangement or agreement with respect to the voting thereof, except in accordance with Section 3.4;
other than any such trust, arrangement or agreement (ei) knowingly seek or encourage any person to submit nominations in furtherance of a “contested solicitation” or take other action for the election or removal of directors with respect to the Company or FSFR, including any action that is intended only parties to, or is reasonably likely to result inbeneficiaries of, the replacement of the investment advisor of the Company or FSFR, or a modification to which are Investors and Qualified Stockholders and (ii) the terms of which do not require or conditions of either the Company’s or FSFR’s investment advisory agreement;
(f) form, join in or in expressly permit any way participate party thereto to act in a partnership, limited partnership, syndicate or other group, including, without limitation, a group as defined under Section 13(d) of the Exchange Act (except such participation related to the reasonable unwinding of any such group currently existing as of the date of this Agreement) with any person who is not identified on Schedule I hereto (any such person, a “Third Party”), with respect to any securities of the Companies or take any other action that would interfere with the ability of Sellers to vote in accordance manner inconsistent with this Agreement;
(ge) make initiate, propose or otherwise solicit stockholders of Holdco for the approval of one or more stockholder proposals with respect to Holdco as described in Rule 14a-8 under the Exchange Act, or induce or attempt to induce any disclosure, communication, announcement or statement regarding other person to initiate any intent, purpose, plan or stockholder proposal with respect to the FSC Board of Directors (the “Company Board”), the Company investment advisor or the terms and conditions of the Company’s investment advisory agreement, the FSFR Board of Directors (the “FSFR Board”), the FSFR investment advisor or the terms and conditions of FSFR’s investment advisory agreement, the Company, FSFR, or the management, policies or affairs of either the Company or FSFR, or with respect to this Agreement, that is inconsistent with the provisions of this AgreementHoldco;
(hf) effect except in accordance with Section 3.04, seek election to or seek to place a representative on the Board or seek the removal of any member of the Board;
(g) call or seek to have called any meeting of the stockholders of Holdco;
(A) solicit, seek to effect, offer negotiate with or propose provide non-public information to effect, cause or participate in, or in any way assist or facilitate any other person with respect to, (B) make any statement or proposal, whether written or oral, to effect the Board or seekany director or officer of Holdco with respect to, offer or propose (C) otherwise make any public announcement or proposal whatsoever with respect to effect any form of business combination transaction (with any person) involving a change of control of Holdco or participate inthe acquisition of a substantial portion of the equity securities or assets of Holdco or any material subsidiary of Holdco, any tender or exchange offer, including a merger, consolidation, acquisitiontender offer, scheme, arrangement, business combination, recapitalization, reorganization, sale exchange offer or acquisition liquidation of Holdco's assets, liquidation, dissolution, extraordinary dividend, significant share repurchase or other extraordinary transaction involving the Company, FSFR or either of their investment advisors, or any restructuring, recapitalization or similar transaction with respect to Holdco or any material subsidiary of their subsidiaries Holdco; provided, however, that the foregoing shall not (x) apply to any discussion between or joint ventures among the Investors and the Qualified Stockholders or any of their respective securities officers, employees, agents or representatives or (eachy) in the case of clause (B) above, an “Extraordinary Transaction”)be interpreted to limit the ability of any Investor or Qualified Stockholder, or make any statement designee of any Investor or disclosure regarding any intentQualified Stockholder, purpose, plan or proposal with respect to any Extraordinary Transaction or this Agreement that is inconsistent with on the provisions of this Agreement, including any intent, purpose, plan or proposal that is conditioned on, or would require waiver, amendment, nullification or invalidation of, any provision of this Agreement or take any action that could require the Company or FSFR Board to make any public disclosure relating such statement or proposal or to discuss any such intentproposal with any officer or director of or advisor to Holdco or advisor to the Board unless, purposein either case, planit would reasonably be expected to require Holdco to make a public announcement regarding such discussion, proposal statement or conditionproposal;
(i) (i) call or seek to call or request the calling of any meeting of stockholders at either the Company or FSFR, including by written consent, (ii) seekotherwise act, alone or in concert with others, representation on, or nominate any candidate to, the Company Board or the FSFR Board, (iii) seek the removal of any member of the Company Board or the FSFR Board, (iv) seek, alone or in concert with others, or support any Third Party in seeking, to replace the investment advisor of the Company or the investment advisor of FSFR, (v) solicit consents from the Company or FSFR stockholders or otherwise act or seek to act by written consent, control or influence the management or policies of Holdco (viexcept for (A) conduct a referendum of the Company or FSFR stockholders or (vii) make a request for any stockholders list or any other books and records in Sellers’ capacity voting as a Company holder of Voting Securities in accordance with the terms of such Voting Securities and (B) actions taken as a director or FSFR stockholderofficer of Holdco);
(j) purchase publicly disclose any intention, plan or cause to be purchased or otherwise acquire or agree to acquire beneficial ownership of any securities issued by arrangement inconsistent with the Company or FSFRforegoing, or make any securities convertible into such disclosure privately if it would reasonably be expected to require Holdco to make a public announcement regarding such intention, plan or exchangeable for securities issued by the Company or FSFR;arrangement; or
(k) selladvise, offer to sell, give, pledge, grant a security interest in, encumber, assign, grant any option assist (including by knowingly providing or arranging financing for the sale of or otherwise transfer or dispose of (each, a “Transfer”that purpose) any securities issued by the Company and/or any securities convertible into or exchangeable for securities issued by the Company, unless any Buyer fails to timely perform each of its obligations under Section 1.2(b), Section 1.3(c) and/or Section 1.3(d)(i) of this Agreement;
(l) institute, solicit or join, as a party, or knowingly assist encourage any other person in instituting, soliciting or joining, any litigation, arbitration or other proceeding against the Company or FSFR or any of their current or former directors or officers (including derivative actions), other than (i) litigation to enforce the provisions of this Agreement and (ii) counterclaims with respect to any proceeding initiated by, or on behalf of, a party to this Agreement or FSFR against Sellers;
(m) enter into or engage in any short sale or purchase, sale or grant of any option, warrant, derivative, convertible security, stock appreciation right or other similar right (including, without limitation, any put or call option or swap transaction) with respect to or having any measurement relating to any securities of the Companies;
(n) enter into any negotiations, arrangements, understanding or agreements (whether written or oral) with, or advise, finance, assist, seek to knowingly persuade or encourage, any Third Party to take any action or make any statement in connection with any of the foregoing, or make any investment in or enter into any arrangement with any other person that engages, or offers or proposes to engage, in any of the foregoing, or otherwise take or cause any action or make any statement inconsistent with any of the foregoing; or
(o) take any action challenging the validity or enforceability of this Agreement, or make or in any way advance any request or proposal that the Company, FSFR, the Company Board or the FSFR Board amend, modify or waive any provision of this Agreement.
Appears in 3 contracts
Samples: Agreement and Plan of Merger (Time Warner Inc), Investors' Agreement (Turner Broadcasting System Inc), Investors' Agreement (Time Warner Inc/)
Standstill. Effective from During the date of this Agreement Standstill Period, each Stockholder agrees that such Stockholder shall not, and continuing until the later of the certification of votes for the Company 2017 Annual Meeting of Stockholders shall cause its Restricted Affiliates and its and their Representatives acting at its or the certification of votes for the FSFR their direction or on its or their behalf (as defined below) 2017 Annual Meeting of Stockholders (such Stockholders, Restricted Affiliates and Representatives acting in such manner, being the “Standstill PeriodRestricted Persons”), except to the extent expressly permitted by the terms of this Agreement, none of the Sellers shall, and Sellers shall cause their respective controlled Affiliates ) not to, directly or indirectly, in any manner, alone or in concert with others:
(a) solicit, or knowingly encourage or in any way engage in any solicitation of, any proxies or consents or become a “participant” in a “solicitation,” directly or indirectly, as such terms are defined in Regulation 14A under the Securities Exchange Act of 1934, as amended (the “Exchange Act”) of proxies or consents (including, without limitation, any solicitation of consents that seeks to call a special meeting of stockholders or by encouraging or participating in any “withhold” or similar campaign), in each case, whether directly or indirectly, (i) acquire, agree to acquire, propose or offer to acquire, or facilitate the acquisition or ownership of, shares of Parent Common Stock, or Securities of Parent that are convertible, exchangeable or exercisable into shares of Parent Common Stock, other than as a result of any stock split, stock dividend or subdivision of shares of Parent Common Stock, (ii) deposit any Covered Parent Shares into a voting trust or similar Contract or subject any Covered Parent Shares to any voting agreement, pooling arrangement or similar arrangement or other Contract (other than solely between or among the Stockholders), or grant any proxy with respect to securities any Covered Parent Shares (other than (A) pursuant to Section 3.4 or (B) otherwise to Parent or a Person specified by Parent in a proxy card provided to stockholders of Parent by or on behalf of Parent), (iii) enter into, or agree, propose or offer to enter into, or facilitate any merger, business combination, recapitalization, restructuring, change in control transaction or other similar extraordinary transaction involving Parent or any of its Subsidiaries, (iv) make, or in any way participate or engage in, any “solicitation” of “proxies” (as such terms are used in the proxy rules of the Company SEC) to vote, or Fifth Street Senior Floating Rate Corp. advise or knowingly influence any Person with respect to the voting of, any Securities of Parent (“FSFR”other than to vote as recommended by the Parent Board), (v) call, or any securities convertible or exchangeable into or exercisable for any such securities (collectivelyseek to call, “securities of the Companies”);
(b) make any proposal for consideration by stockholders at any annual or special a meeting of the stockholders of the Company Parent or FSFR, whether pursuant to Rule 14a-8 under the Exchange Act, either such company’s constituent documents or otherwise;
(c) knowingly advise, encourage, support, instruct or influence initiate any person with respect to any of the matters covered stockholder proposal for action by this Section 3.1 or with respect to the voting or disposition of any securities of the Companies at any annual or special meeting of stockholders of the Company or FSFRParent, except in accordance with Section 3.4, or seek to do so;
(d) agree, attempt, seek or propose to deposit any securities of the Companies in any voting trust or similar arrangement, or subject any securities of the Companies to any arrangement or agreement with respect to the voting thereof, except in accordance with Section 3.4;
(e) knowingly seek or encourage any person to submit nominations in furtherance of a “contested solicitation” or take other action for the election or removal of directors with respect to the Company or FSFR, including any action that is intended to, or is reasonably likely to result in, the replacement of the investment advisor of the Company or FSFR, or a modification to the terms or conditions of either the Company’s or FSFR’s investment advisory agreement;
(fvi) form, join in or in any way participate in a partnership, limited partnership, syndicate or other group, including, without limitation, a group Group (as defined under in Section 13(d) 13d-3 of the Exchange Act (except such participation related to the reasonable unwinding of any such group currently existing as of the date of this AgreementAct) with any person who is not identified on Schedule I hereto (any such person, a “Third Party”), with respect to any securities Securities of the Companies or take any other action that would interfere with the ability of Sellers to vote in accordance with this Agreement;
(g) make any disclosure, communication, announcement or statement regarding any intent, purpose, plan or proposal with respect to the FSC Board of Directors (the “Company Board”), the Company investment advisor or the terms and conditions of the Company’s investment advisory agreement, the FSFR Board of Directors (the “FSFR Board”), the FSFR investment advisor or the terms and conditions of FSFR’s investment advisory agreement, the Company, FSFR, or the management, policies or affairs of either the Company or FSFR, or with respect to this Agreement, that is inconsistent with the provisions of this Agreement;
(h) effect or seek to effect, offer or propose to effect, cause or participate in, or in any way assist or facilitate any other person to effect or seek, offer or propose to effect or participate in, any tender or exchange offer, merger, consolidation, acquisition, scheme, arrangement, business combination, recapitalization, reorganization, sale or acquisition of assets, liquidation, dissolution, extraordinary dividend, significant share repurchase or other extraordinary transaction involving the Company, FSFR or either of their investment advisors, or any of their subsidiaries or joint ventures or any of their respective securities (each, an “Extraordinary Transaction”), or make any statement or disclosure regarding any intent, purpose, plan or proposal with respect to any Extraordinary Transaction or this Agreement that is inconsistent with the provisions of this Agreement, including any intent, purpose, plan or proposal that is conditioned on, or would require waiver, amendment, nullification or invalidation of, any provision of this Agreement or take any action that could require the Company or FSFR to make any public disclosure relating to any such intent, purpose, plan, proposal or condition;
(i) (i) call or seek to call or request the calling of any meeting of stockholders at either the Company or FSFR, including by written consentParent, (iivii) seekotherwise act, alone or in concert with others, representation on, to seek to control or nominate any candidate to, influence the Company Board management or the FSFR Boardpolicies of Parent (provided, (iii) seek the removal of any member of the Company Board or the FSFR Board, (iv) seek, alone or in concert with others, or support any Third Party in seeking, to replace the investment advisor of the Company or the investment advisor of FSFR, (v) solicit consents from the Company or FSFR stockholders or otherwise act or seek to act by written consent, (vi) conduct a referendum of the Company or FSFR stockholders or that this clause (vii) make a request for any stockholders list shall in no way limit the activities of the Stockholders Director taken in good faith solely at meetings of the Parent Board or any committee thereof), (viii) publicly disclose any intention, plan, arrangement or other books and records in Sellers’ capacity as a Company or FSFR stockholder;
(j) purchase or cause to be purchased or otherwise acquire or agree to acquire beneficial ownership of any securities issued by the Company or FSFRContract prohibited by, or any securities convertible into inconsistent with, the foregoing or exchangeable for securities issued by the Company or FSFR;
(kix) sell, offer to sell, give, pledge, grant a security interest in, encumber, assign, grant any option for the sale of or otherwise transfer or dispose of (each, a “Transfer”) any securities issued by the Company and/or any securities convertible into or exchangeable for securities issued by the Company, unless any Buyer fails to timely perform each of its obligations under Section 1.2(b), Section 1.3(c) and/or Section 1.3(d)(i) of this Agreement;
(l) institute, solicit or join, as a party, advise or knowingly assist any other person in instituting, soliciting or joining, any litigation, arbitration or other proceeding against the Company or FSFR or any of their current or former directors or officers (including derivative actions), other than (i) litigation to enforce the provisions of this Agreement and (ii) counterclaims with respect to any proceeding initiated by, or on behalf of, a party to this Agreement or FSFR against Sellers;
(m) enter into or engage in any short sale or purchase, sale or grant of any option, warrant, derivative, convertible security, stock appreciation right or other similar right (including, without limitation, any put or call option or swap transaction) with respect to or having any measurement relating to any securities of the Companies;
(n) enter into any negotiations, arrangements, understanding or agreements (whether written or oral) with, or advise, finance, assist, seek to knowingly persuade or encourage, any Third Party to take any action or make any statement in connection with any of the foregoing, or make any investment in encourage or enter into any arrangement discussions, negotiations, agreements, or arrangements or other Contracts with any other person that engages, or offers or proposes to engage, Persons in any of connection with the foregoing. The Stockholders further agree that, or otherwise take or cause any action or make any statement inconsistent with any of during the foregoing; or
(o) take any action challenging the validity or enforceability of this Agreement, or make or in any way advance any request or proposal that the Company, FSFRStandstill Period, the Company Board Stockholders shall not, directly or the FSFR Board amendindirectly, modify and shall cause their respective Restricted Persons not to, directly or indirectly (a) request to Parent to amend or waive any provision of this AgreementSection 3.2 (including this sentence) or (b) take any action that would reasonably be expected to require Parent to make a public announcement regarding the possibility of a business combination, merger or other type of transaction or matter described in this Section 3.2. For the avoidance of doubt, notwithstanding anything to the contrary contained herein, at all times during the Standstill Period, the Stockholders agree that their aggregate Beneficial Ownership, on a fully diluted basis, of Parent Common Stock or securities of Parent that are convertible, exchangeable or exercisable into Parent Common Stock, shall not exceed the Stockholder Ownership Limit.
Appears in 3 contracts
Samples: Agreement and Plan of Merger (Pinnacle Foods Inc.), Stockholders Agreement (Hillshire Brands Co), Agreement and Plan of Merger (Hillshire Brands Co)
Standstill. Effective from (a) Each Liberty Party agrees that, prior to the date earliest of this Agreement and continuing until (i) the later fourth anniversary of the certification Closing Date, (ii) the sale of votes for all or substantially all of the Company 2017 Annual Meeting assets of Stockholders Vivendi and its subsidiaries to another Person other than a subsidiary of Vivendi or (iii) the certification effective time of votes for any merger or consolidation of Vivendi with or into any other Person, other than a merger or consolidation in which a majority of the FSFR (as defined below) 2017 Annual Meeting shares of Stockholders the surviving entity are held by the holders of Vivendi's voting securities immediately prior to such effective time (the “Standstill "Restricted Period”"), except to the extent expressly permitted by the terms of this Agreementit and its Affiliates will not, none of the Sellers shallin any manner, and Sellers shall cause their respective controlled Affiliates not towhether publicly or otherwise, directly or indirectly, without the prior written consent of Vivendi, unless specifically requested in any manner, alone writing by the CEO of Vivendi or in concert with othersby a resolution of a majority of the board of directors of Vivendi:
(ai) solicitacquire, agree to acquire or make any proposal to acquire, directly or indirectly, by purchase or otherwise, beneficial ownership of (A) any voting securities if immediately after such acquisition, the voting securities beneficially owned, in the aggregate, by Liberty and its Affiliates would exceed five percent (5%) of the outstanding voting securities of Vivendi or (B) any significant assets of Vivendi, or knowingly encourage any of its subsidiaries (other than assets acquired in the ordinary course of business); provided, however, that this clause shall not be deemed to be violated by the indirect acquisition of voting securities of Vivendi as a result of an acquisition by a Liberty Party of another Person that holds such voting securities so long as the voting securities of Vivendi held by such Person do not exceed 1% of such Person's total assets;
(ii) propose to enter into, directly or indirectly, any merger, tender offer or other business combination or similar transaction involving Vivendi or any of its subsidiaries (including a purchase of a material portion of their assets);
(iii) make, or in any way engage in any solicitation ofparticipate in, any proxies or consents or become a “participant” in a “solicitation,” directly or indirectly, any "solicitation" of "proxies" (as such terms are defined in Regulation 14A under the Securities Exchange Act of 1934, as amended (the “Exchange Act”"Regulation 14A") of proxies or consents (including, without limitation, any solicitation of consents that seeks to call a special meeting of stockholders or by encouraging or participating in any “withhold” or similar campaign), in each case, with respect to securities of the Company or Fifth Street Senior Floating Rate Corp. (“FSFR”) or any securities convertible or exchangeable into or exercisable for any such securities (collectively, “securities of the Companies”);
(b) make any proposal for consideration by stockholders at any annual or special meeting of the stockholders of the Company or FSFR, whether pursuant to Rule 14a-8 under the Exchange ActAct but without regard to the exclusion set forth in clause (2)(iv) of the definition of "solicitation") to vote, either such company’s constituent documents or otherwise;
(c) knowingly advise, encourage, support, instruct seek to advise or influence any person with respect to any of the matters covered by this Section 3.1 or Person with respect to the voting or disposition of of, any securities of Vivendi or any of its subsidiaries, or become a "participant" in a "solicitation" (as such terms are defined in Regulation 14A but without regard to the Companies at any annual or special meeting of stockholders exclusion set forth in clause (2)(iv) of the Company definition of "solicitation") whether or FSFRnot such solicitation is subject to regulation under Regulation 14A;
(iv) grant any proxy with respect to any voting securities of Vivendi (other than to Vivendi, except in accordance with Section 3.4its Affiliates or the CEO of Vivendi);
(v) call, or seek to do socall, a meeting of Vivendi's shareholders or initiate any shareholder proposal for action by shareholders of Vivendi;
(dvi) agreebring any action or otherwise act to contest the validity of this Article X or seek a release of the restrictions contained herein;
(vii) form, attempt, seek join or propose in any way participate in a "group" (within the meaning of Section 13(d)(3) of the Exchange Act) with respect to any voting securities of Vivendi or any of its subsidiaries or deposit any voting securities of the Companies Vivendi in any a voting trust or similar arrangement, or subject any voting securities of the Companies Vivendi to any arrangement or agreement with respect to the voting thereof, except in accordance with Section 3.4of such voting securities or other agreement having similar effect;
(eviii) knowingly seek or encourage any person to submit nominations in furtherance of a “contested solicitation” or take other action for the election or removal of directors with respect to the Company or FSFR, including any action that is intended to, or is reasonably likely to result in, the replacement of the investment advisor of the Company or FSFR, or a modification to the terms or conditions of either the Company’s or FSFR’s investment advisory agreement;
(f) form, join in or in any way participate in a partnership, limited partnership, syndicate or other group, including, without limitation, a group as defined under Section 13(d) of the Exchange Act (except such participation related to the reasonable unwinding of any such group currently existing as of the date of this Agreement) with any person who is not identified on Schedule I hereto (any such person, a “Third Party”), with respect to any securities of the Companies or take any other action that would interfere with the ability of Sellers to vote in accordance with this Agreement;
(g) make any disclosure, communication, announcement or statement regarding any intent, purpose, plan or proposal with respect to the FSC Board of Directors (the “Company Board”), the Company investment advisor or the terms and conditions of the Company’s investment advisory agreement, the FSFR Board of Directors (the “FSFR Board”), the FSFR investment advisor or the terms and conditions of FSFR’s investment advisory agreement, the Company, FSFR, or the management, policies or affairs of either the Company or FSFR, or with respect to this Agreement, that is inconsistent with the provisions of this Agreement;
(h) effect or seek to effect, offer or propose to effect, cause or participate in, or in any way assist or facilitate any other person to effect or seek, offer or propose to effect or participate in, any tender or exchange offer, merger, consolidation, acquisition, scheme, arrangement, business combination, recapitalization, reorganization, sale or acquisition of assets, liquidation, dissolution, extraordinary dividend, significant share repurchase or other extraordinary transaction involving the Company, FSFR or either of their investment advisors, or any of their subsidiaries or joint ventures or any of their respective securities (each, an “Extraordinary Transaction”), or make any statement or disclosure regarding any intent, purpose, plan or proposal with respect to any Extraordinary Transaction or this Agreement that is inconsistent with the provisions of this Agreement, including any intent, purpose, plan or proposal that is conditioned on, or would require waiver, amendment, nullification or invalidation of, any provision of this Agreement or take any action that could require the Company or FSFR to make any public disclosure relating to any such intent, purpose, plan, proposal or condition;
(i) (i) call or seek to call or request the calling of any meeting of stockholders at either the Company or FSFR, including by written consent, (ii) seekotherwise act, alone or in concert with others, representation on, to seek to affect or nominate any candidate to, influence the Company Board control of the management or the FSFR Board, (iii) seek the removal board of any member directors of the Company Board Vivendi or the FSFR Boardbusiness, (iv) seek, alone operations or in concert with others, or support any Third Party in seeking, to replace the investment advisor policies of the Company or the investment advisor of FSFR, (v) solicit consents from the Company or FSFR stockholders or otherwise act or seek to act by written consent, (vi) conduct a referendum of the Company or FSFR stockholders or (vii) make a request for any stockholders list or any other books and records in Sellers’ capacity as a Company or FSFR stockholderVivendi;
(j) purchase or cause to be purchased or otherwise acquire or agree to acquire beneficial ownership of any securities issued by the Company or FSFR, or any securities convertible into or exchangeable for securities issued by the Company or FSFR;
(k) sell, offer to sell, give, pledge, grant a security interest in, encumber, assign, grant any option for the sale of or otherwise transfer or dispose of (each, a “Transfer”) any securities issued by the Company and/or any securities convertible into or exchangeable for securities issued by the Company, unless any Buyer fails to timely perform each of its obligations under Section 1.2(b), Section 1.3(c) and/or Section 1.3(d)(i) of this Agreement;
(l) institute, solicit or join, as a party, or knowingly assist any other person in instituting, soliciting or joining, any litigation, arbitration or other proceeding against the Company or FSFR or any of their current or former directors or officers (including derivative actions), other than (i) litigation to enforce the provisions of this Agreement and (ii) counterclaims with respect to any proceeding initiated by, or on behalf of, a party to this Agreement or FSFR against Sellers;
(m) enter into or engage in any short sale or purchase, sale or grant of any option, warrant, derivative, convertible security, stock appreciation right or other similar right (including, without limitation, any put or call option or swap transaction) with respect to or having any measurement relating to any securities of the Companies;
(nix) enter into any discussions, negotiations, arrangements, understanding understandings or agreements (whether written or oral) withwith any other Person (other than Liberty's financial advisors or directors, officers, employees, agents, advisors or representatives) regarding a business combination involving Vivendi, any other purchase of any voting securities involving Vivendi, or advisesignificant assets of Vivendi;
(x) disclose any intention, finance, assist, seek to knowingly persuade plan or encourage, arrangement inconsistent with the foregoing; or
(xi) advise or assist any Third Party to take any action or make any statement other Person in connection with any of the foregoing. Each Liberty Party also agrees that, during the Restricted Period, neither it nor anyone acting on its behalf will (x) request Vivendi or make any investment in or enter into any arrangement with any other person that engages, or offers or proposes to engage, in any of the foregoingits directors, officers, employees, agents, advisors or otherwise take representatives, directly or cause any action or make any statement inconsistent with any of the foregoing; or
(o) take any action challenging the validity or enforceability of this Agreementindirectly, or make or in any way advance any request or proposal that the Company, FSFR, the Company Board or the FSFR Board amend, modify to amend or waive any provision of this AgreementArticle X (including this sentence) or (y) take any action which might require Vivendi to make a public announcement regarding the possibility of a business combination, merger or extraordinary transaction.
(b) Notwithstanding Section 10.01(a), Liberty or any of its Affiliates shall be permitted during the Restricted Period to submit a proposal addressed to the board of directors of Vivendi that proposes a merger or other business combination involving Vivendi if (i) Vivendi shall have publicly announced that it has entered into a definitive agreement providing for: (A) any acquisition from Vivendi or from one or more stockholders thereof (by tender or exchange offer or other public offer), or both, more than 50% of the outstanding voting or equity securities of Vivendi, (B) any acquisition of all, or substantially all, the assets of Vivendi and its subsidiaries or (C) a merger, consolidation, statutory share exchange or similar transaction between or involving Vivendi and another Person (other than a merger or consolidation in which a majority of the voting shares of the surviving entity are held by the holders of Vivendi's voting securities immediately prior to such effective time); or (ii) any Person shall have commenced a tender offer or exchange offer that is likely to result in any Person or group beneficially owning 50% or more of the voting securities of Vivendi; provided, that in the case of this clause (ii), the right to make a proposal pursuant to this Section 10.01(b) shall cease upon the withdrawal or termination of such unsolicited tender offer or exchange offer or proposal unless Liberty or any of its Affiliates shall have submitted a proposal prior to such withdrawal or termination.
Appears in 3 contracts
Samples: Merger Agreement (Usa Networks Inc), Merger Agreement (Vivendi Universal), Merger Agreement (Usa Networks Inc)
Standstill. Effective from the date of this Agreement and continuing (a) TPG hereby agrees that until the later earliest of (i) such time as TPG and its Affiliates no longer collectively own at least five percent (5%) of the certification of votes for outstanding Common Stock, (ii) the Company 2017 Annual Meeting of Stockholders or the certification of votes for the FSFR third (as defined below3rd) 2017 Annual Meeting of Stockholders (the “Standstill Period”), except to the extent expressly permitted by the terms of this Agreement, none anniversary of the Sellers shallEffective Date or (iii) a Change of Control of the Company, and Sellers shall cause their respective controlled without the prior written approval of the Company, neither TPG nor any of its Affiliates not to(other than any Non-Private Equity Business of TPG or its Affiliates) will, directly or indirectly, in any manner, alone or in concert with others:
(ai) solicitacquire, offer or propose to acquire or agree to acquire, Beneficial Ownership of more than fifteen percent (15%) of the outstanding Voting Securities of the Company in the aggregate, other than Voting Securities in excess of fifteen percent (15%) of the outstanding Voting Securities of the Company acquired (A) as a result of the exercise of any rights or obligations set forth in this Agreement, (B) pursuant to a stock split, stock dividend, recapitalization, reclassification or similar transaction, (C) with the consent of the majority of the non-TPG Directors or (D) directly from the Company;
(ii) enter into or agree, offer, propose or seek (whether publicly or otherwise) to enter into, or knowingly encourage otherwise be involved in or in any way engage in any solicitation part of, any proxies acquisition transaction, merger or consents other business combination relating to all or become a “participant” in part of the Company or any of its subsidiaries or any acquisition transaction for all or part of the assets of the Company or any of its subsidiaries or any of their respective businesses;
(iii) other than a “solicitation,” directly or indirectly, of a “proxy” (as such terms are defined in under Regulation 14A under the Securities Exchange Act of 1934, as amended (the “Exchange Act”, disregarding clause (iv) of proxies or consents (including, without limitation, Rule 14a-1(1)(2) and including any otherwise exempt solicitation pursuant to Rule 14a-2(b)) seeking approval of consents that seeks the election to call a special meeting of stockholders or by encouraging or participating in any “withhold” or similar campaign), in each case, the Company Board solely with respect to securities any of the TPG Nominated Directors permitted by the terms hereof to serve on such Company Board, make, or in any way participate in, any such “solicitation” of “proxies” to vote, or seek to advise or influence any person or entity with respect to the voting of, any Common Stock of the Company or Fifth Street Senior Floating Rate Corp. (“FSFR”) or any securities convertible or exchangeable into or exercisable for any such securities (collectively, “securities of the Companies”)its subsidiaries;
(biv) make any proposal for consideration by stockholders at any annual call or special seek to call a meeting of the stockholders of the Company or FSFR, whether pursuant to Rule 14a-8 under the Exchange Act, either such company’s constituent documents or otherwise;
(c) knowingly advise, encourage, support, instruct or influence any person with respect to any of the matters covered Company’s subsidiaries or initiate any stockholder proposal for action by this Section 3.1 or with respect to the voting or disposition of any securities of the Companies at any annual or special meeting of stockholders of the Company or FSFRCompany, except in accordance with Section 3.4, or seek to do so;
(d) agree, attempt, seek or propose to deposit any securities of the Companies in any voting trust or similar arrangement, or subject any securities of the Companies to any arrangement or agreement with respect to the voting thereof, except in accordance with Section 3.4;
(e) knowingly seek or encourage any person to submit nominations in furtherance of a “contested solicitation” or take other action for the election or removal of directors with respect to the Company or FSFR, including any action that is intended to, or is reasonably likely to result in, the replacement of the investment advisor of the Company or FSFR, or a modification to the terms or conditions of either the Company’s or FSFR’s investment advisory agreement;
(f) form, join in or in any way participate in a partnership, limited partnership, syndicate or other “group, including, without limitation, a group as defined under ” (within the meaning of Section 13(d13(d)(3) of the Exchange Act (except such participation related to and the reasonable unwinding of any such group currently existing as of the date of this Agreementrules and regulations thereunder) with any person who is not identified on Schedule I hereto (any such person, a “Third Party”), with respect to any securities of the Companies or take any other action that would interfere with the ability of Sellers to vote in accordance with this AgreementVoting Securities;
(gv) make deposit any disclosureSecurities of the Company into a voting trust, communication, announcement or statement regarding subject any intent, purpose, plan Securities of the Company to any agreement or proposal arrangement with respect to the FSC Board voting of Directors (the “Company Board”), the Company investment advisor or the terms and conditions of the Company’s investment advisory agreement, the FSFR Board of Directors (the “FSFR Board”), the FSFR investment advisor or the terms and conditions of FSFR’s investment advisory agreement, the Company, FSFRsuch securities, or the management, policies other agreement or affairs of either the Company or FSFR, or with respect to this Agreement, that is inconsistent with the provisions of this Agreementarrangement having similar effect;
(hvi) effect or seek to effect, offer or propose to effect, cause or participate in, or in any way assist or facilitate any other person to effect or seek, offer or propose to effect or participate in, any tender or exchange offer, merger, consolidation, acquisition, scheme, arrangement, business combination, recapitalization, reorganization, sale or acquisition of assets, liquidation, dissolution, extraordinary dividend, significant share repurchase or other extraordinary transaction involving the Company, FSFR or either of their investment advisors, or any of their subsidiaries or joint ventures or any of their respective securities (each, an “Extraordinary Transaction”), or make any statement or disclosure regarding any intent, purpose, plan or proposal with respect to any Extraordinary Transaction or this Agreement that is inconsistent with the provisions of this Agreement, including any intent, purpose, plan or proposal that is conditioned on, or would require waiver, amendment, nullification or invalidation of, any provision of this Agreement or take any action that could require the Company or FSFR to make any public disclosure relating to any such intent, purpose, plan, proposal or condition;
(i) (i) call or seek to call or request the calling of any meeting of stockholders at either the Company or FSFR, including by written consent, (ii) seek, alone or in concert with others, representation on, or nominate any candidate to, on the Company Board or a change in the FSFR Board, (iii) seek the removal of any member composition of the Company Board or number of directors elected by the FSFR Boardholders of Common Stock or a change in the number of such directors who represent TPG, other than as expressly permitted pursuant to this Agreement; and
(vii) bring any action or otherwise act to contest the validity of this Section 4.1; provided, that nothing in clauses (ii), (iii), (iv) seek, alone or (vi) of this Section 4.1(a) shall apply to the TPG Nominated Director solely in concert with others, his or support any Third Party in seeking, to replace the investment advisor her capacity as a director of the Company or to actions taken by TPG or any of its Affiliates to prepare the investment advisor of FSFR, (v) solicit consents from the Company or FSFR stockholders or otherwise act or seek TPG Nominated Director to act in such capacity.
(b) The limitations provided in Section 4.1(a) shall, upon the occurrence of any of the following events, immediately be suspended until the expiration of the time period set forth below in this Section 4.1(b), but only so long as TPG or any of its Affiliates (other than any Non Private Equity Business of TPG or its Affiliates) did not directly or indirectly assist, facilitate, encourage or participate in any such events:
(i) on the commencement (as defined in Rule 14d-2 of the Exchange Act) by written consent, (vi) conduct any Person of a referendum tender or exchange offer seeking to acquire Beneficial Ownership of a number outstanding shares of Voting Securities of the Company or FSFR stockholders or (vii) make that, if consummated, would result in a request for any stockholders list or any other books Change of Control and records in Sellers’ capacity as a Company or FSFR stockholder;
(j) purchase or cause to be purchased or otherwise acquire or agree to acquire beneficial ownership of any securities issued which is recommended by the Company or FSFRBoard; provided, or any securities convertible into or exchangeable for securities issued by the Company or FSFR;
(k) sellthat TPG has not facilitated, offer to sell, give, pledge, grant a security interest in, encumber, assign, grant any option for the sale of or otherwise transfer or dispose of (each, a “Transfer”) any securities issued by the Company and/or any securities convertible into or exchangeable for securities issued by the Company, unless any Buyer fails to timely perform each of its obligations under Section 1.2(b), Section 1.3(c) and/or Section 1.3(d)(i) of this Agreement;
(l) institute, solicit or join, as a party, or knowingly assist any other person in instituting, soliciting or joining, any litigation, arbitration or other proceeding against the Company or FSFR or any of their current or former directors or officers (including derivative actions), other than (i) litigation to enforce the provisions of this Agreement and (ii) counterclaims with respect to any proceeding initiated by, or on behalf of, a party to this Agreement or FSFR against Sellers;
(m) enter into or engage in any short sale or purchase, sale or grant of any option, warrant, derivative, convertible security, stock appreciation right or other similar right (including, without limitation, any put or call option or swap transaction) with respect to or having any measurement relating to any securities of the Companies;
(n) enter into any negotiations, arrangements, understanding or agreements (whether written or oral) with, or advise, finance, assist, seek to knowingly persuade or encourage, any Third Party to take any action or make any statement in connection with any of the foregoing, or make any investment in or enter into any arrangement with any other person that engages, or offers or proposes to engage, in any of the foregoingencouraged, or otherwise take or cause any action or make any statement inconsistent with any of the foregoingparticipated in such tender offer; or
(oii) take any action challenging on the validity or enforceability of this Agreement, or make or in any way advance any request or proposal that the Company, FSFR, public announcement by the Company Board or a duly constituted committee of the FSFR Company Board amend(a) to solicit one or more proposals for a transaction that, modify if consummated, would result in a Change of Control or waive (b) to pursue discussions or negotiations or make diligence materials available, with respect to an unsolicited proposal for a transaction that, if consummated, would result in a Change of Control; provided, that in each case TPG has not facilitated, encouraged, or otherwise participated in such tender offer. provided, however, that upon (y) any provision withdrawal or lapsing of any such tender or exchange offer referred to in Section 4.1(b)(i) which does not result in a Change of Control, or (z) the abandonment by the Company Board or a duly constituted committee of the Company Board of a process to solicit a proposal of the type referred to in Section 4.1(b)(ii) without a Change of Control having occurred and without an agreement to effect a Change of Control, as the case may be, the limitations provided in Section 4.1(a) (except to the extent then suspended as a result of any other event specified in this Section 4.1(b)) shall again be applicable for so long as and only to the extent provided in this Agreement.
Appears in 3 contracts
Samples: Voting Agreement (Parkway Properties Inc), Stockholders Agreement (Cousins Properties Inc), Voting Agreement (Cousins Properties Inc)
Standstill. Effective from the date of this Agreement and continuing until the later (a) Each member of the certification North Tide Group agrees that, during the Covered Period, it shall not, and shall cause each of votes for the Company 2017 Annual Meeting of Stockholders its Affiliates or the certification of votes for the FSFR Associates (as such terms are defined below) 2017 Annual Meeting in Rule 12b-2 promulgated by the SEC under the Securities Exchange Act of Stockholders 1934, as amended (the “Standstill Period”"Exchange Act")) (collectively and individually, the "North Tide Affiliates") not to (except to the extent as expressly permitted by the terms of set forth in this Agreement, none of the Sellers shall, and Sellers shall cause their respective controlled Affiliates not to), directly or indirectly, in any manner, alone or in concert with others:
(ai) solicitmake, or knowingly encourage engage in, or in any way engage in any solicitation ofparticipate in, any proxies or consents or become a “participant” in a “solicitation,” directly or indirectly, any "solicitation" of proxies (as such terms are defined used in Regulation 14A under the Securities Exchange Act proxy rules of 1934, as amended (the “SEC but without regard to the exclusion set forth in Rule 14a-1(l)(2)(iv) of the Exchange Act”) of proxies or consents (includingto vote, without limitationor seek to advise, encourage or influence any solicitation of consents that seeks to call a special meeting of stockholders or by encouraging or participating in any “withhold” or similar campaign), in each case, person with respect to the voting of any securities of the Company or Fifth Street Senior Floating Rate Corp. (“FSFR”) or any securities convertible or exchangeable into or exercisable for any such securities (collectively, “"securities of the Companies”);
Company") for the election of individuals to the Board or to approve stockholder proposals, or become a "participant" in any contested "solicitation" for the election of directors with respect to the Company (bas such terms are defined or used under the Exchange Act) make any proposal for consideration by stockholders (other than a "solicitation" or acting as a "participant" in support of all of the nominees of the Board at any annual stockholder meeting) or special meeting make or be the proponent of the stockholders of the Company or FSFR, whether any stockholder proposal (pursuant to Rule 14a-8 under the Exchange Act, either such company’s constituent documents Act or otherwise);
(cii) knowingly adviseform, join, encourage, supportinfluence, instruct advise or influence in any person way participate in any "group" (as such term is defined in Section 13(d)(3) of the Exchange Act) with any persons who are not North Tide Affiliates with respect to any of the matters covered by this Section 3.1 or with respect to the voting or disposition of any securities of the Companies at any annual or special meeting of stockholders of the Company or FSFR, except otherwise in accordance with Section 3.4, or seek to do so;
(d) any manner agree, attempt, seek or propose to deposit any securities of the Companies Company in any voting trust or similar arrangementarrangement (including lending any securities of the Company to any person for the purpose of allowing such person to vote such securities in connection with any stockholder vote of the Company), or subject any securities of the Companies Company to any arrangement or agreement with respect to the voting thereof, except other than in accordance with Section 3.4this Agreement;
(eiii) knowingly seek acquire, offer or encourage any person propose to submit nominations in furtherance of a “contested solicitation” or take other action for the election or removal of directors with respect to the Company or FSFR, including any action that is intended toacquire, or is reasonably likely agree to result inacquire, directly or indirectly, whether by purchase, tender or exchange offer, through the replacement acquisition of the investment advisor control of the Company or FSFRanother person, or a modification to the terms or conditions of either the Company’s or FSFR’s investment advisory agreement;
(f) form, join in or in any way participate in by joining a partnership, limited partnership, syndicate or other group, including, without limitation, group (including any group of persons that would be treated as a group as defined single "person" under Section 13(d) of the Exchange Act (except such participation related to the reasonable unwinding of any such group currently existing as of the date of this Agreement) with any person who is not identified on Schedule I hereto (any such person, a “Third Party”Act), with respect to through swap or hedging transactions or otherwise, any securities of the Companies Company or take any other action rights decoupled from the underlying securities of the Company that would interfere result in the North Tide Group (together with the ability North Tide Affiliates) owning, controlling or otherwise having any beneficial or other ownership interest in more than 15% in the aggregate of Sellers the shares of Common Stock outstanding at such time; provided that nothing herein will require Common Stock to vote in accordance with be sold to the extent the North Tide Group and the North Tide Affiliates, collectively, exceed the ownership limit under this Agreementparagraph as the result of a share repurchase or similar Company actions that reduces the number of outstanding shares of Common Stock, as long as the beneficial or other ownership interest of the North Tide Group does not increase thereafter (except solely as a result of corporate actions taken by the Company);
(g) make any disclosure, communication, announcement or statement regarding any intent, purpose, plan or proposal with respect to the FSC Board of Directors (the “Company Board”), the Company investment advisor or the terms and conditions of the Company’s investment advisory agreement, the FSFR Board of Directors (the “FSFR Board”), the FSFR investment advisor or the terms and conditions of FSFR’s investment advisory agreement, the Company, FSFR, or the management, policies or affairs of either the Company or FSFR, or with respect to this Agreement, that is inconsistent with the provisions of this Agreement;
(hiv) effect or seek to effect, offer or propose to effect, cause or participate in, or in any way assist or facilitate any other person to effect or seek, offer or propose to effect or participate in, any tender or exchange offer, merger, consolidation, acquisition, scheme, arrangement, business combination, recapitalization, reorganization, sale or acquisition of material assets, liquidation, dissolution, extraordinary dividend, significant share repurchase dissolution or other extraordinary transaction involving the Company, FSFR or either of their investment advisors, Company or any of their its subsidiaries or joint ventures or any of their respective securities (each, an “"Extraordinary Transaction”"), or make any public statement with respect to an Extraordinary Transaction; provided, however, that this clause shall not preclude the tender by the North Tide Group or disclosure a North Tide Affiliates of any securities of the Company into any tender or exchange offer or vote with respect to any Extraordinary Transaction approved by the Board;
(v) engage in any short sale or any purchase, sale or grant of any option, warrant, convertible security, stock appreciation right, or other similar right (including any hedging, put or call option or "swap" transaction) with respect to any securities of the Company (other than a broad-based market basket or index);
(vi) (A) seek representation on or nominate any candidate to, the Board, except as set forth herein, (B) seek or encourage the removal of any member of the Board, (C) conduct a referendum of stockholders, or (D) make a request for any stockholder list or other Company books and records, whether pursuant to Section 220 of the DGCL or otherwise;
(vii) take any action in support of or make any proposal or request that constitutes: (A) advising, controlling, changing or influencing the Board, management or policies of the Company, including any plans or proposals to change the number or term of directors or the removal of any directors, or to fill any vacancies on the Board, except as set forth herein; (B) any material change in the capitalization, stock repurchase programs and practices or dividend policy of the Company; (C) any other material change in the Company's management, business or corporate structure; (D) seeking to have the Company waive or make amendments or modifications to the Company's restated certificate of incorporation, as amended, or the Bylaws, or other actions that may impede or facilitate the acquisition of control of the Company by any person; (E) causing a class of securities of the Company to be delisted from, or to cease to be authorized to be quoted on, any securities exchange; or (F) causing a class of securities of the Company to become eligible for termination of registration pursuant to Section 12(g)(4) of the Exchange Act;
(viii) make any public disclosure, announcement or statement regarding any intent, purpose, arrangement, plan or proposal with respect to the Board, the Company, its management, policies or affairs, any Extraordinary Transaction of its securities or assets or this Agreement that is inconsistent with the provisions of this Agreement;
(ix) commence, including encourage or support any intent, purpose, plan or proposal that is conditioned onderivative action in the name of the Company, or would any class action against the Company or any of its officers or directors;
(x) take any action which could cause or require waiverthe Company or any Affiliate of the Company to make a public announcement regarding any of the foregoing, amendmentpublicly seek or request permission to do any of the foregoing;
(xi) request, nullification directly or invalidation ofindirectly, that the Company or the Board or any of their respective representatives amend or waive any provision of this Agreement Section 2(a) or for the Board to specifically invite the North Tide Group to take any action that could require the Company or FSFR to make any public disclosure relating to any such intent, purpose, plan, proposal or conditionactions prohibited by this Section 2(a);
(ixii) (i) call enter into any discussions, negotiations, agreements or seek to call or request the calling of any meeting of stockholders at either the Company or FSFR, including by written consent, (ii) seek, alone or in concert understandings with others, representation on, or nominate any candidate to, the Company Board or the FSFR Board, (iii) seek the removal of any member of the Company Board or the FSFR Board, (iv) seek, alone or in concert with others, or support any Third Party in seeking, to replace the investment advisor of the Company or the investment advisor of FSFR, (v) solicit consents from the Company or FSFR stockholders or otherwise act or seek to act by written consent, (vi) conduct a referendum of the Company or FSFR stockholders or (vii) make a request for any stockholders list or any other books and records in Sellers’ capacity as a Company or FSFR stockholder;
(j) purchase or cause to be purchased or otherwise acquire or agree to acquire beneficial ownership of any securities issued by the Company or FSFR, or any securities convertible into or exchangeable for securities issued by the Company or FSFR;
(k) sell, offer to sell, give, pledge, grant a security interest in, encumber, assign, grant any option for the sale of or otherwise transfer or dispose of (each, a “Transfer”) any securities issued by the Company and/or any securities convertible into or exchangeable for securities issued by the Company, unless any Buyer fails to timely perform each of its obligations under Section 1.2(b), Section 1.3(c) and/or Section 1.3(d)(i) of this Agreement;
(l) institute, solicit or join, as a party, or knowingly assist any other person in instituting, soliciting or joining, any litigation, arbitration or other proceeding against the Company or FSFR or any of their current or former directors or officers (including derivative actions), other than (i) litigation to enforce the provisions of this Agreement and (ii) counterclaims with respect to any proceeding initiated by, or on behalf of, a party to this Agreement or FSFR against Sellers;
(m) enter into or engage in any short sale or purchase, sale or grant of any option, warrant, derivative, convertible security, stock appreciation right or other similar right (including, without limitation, any put or call option or swap transaction) with respect to or having any measurement relating to any securities of the Companies;
(n) enter into any negotiations, arrangements, understanding or agreements (whether written or oral) withforegoing, or advise, finance, assist, knowingly encourage or seek to knowingly persuade or encourage, any Third Party to take any action or cause any action or make any statement in connection with any of the foregoing, or make any investment in or enter into any arrangement with any other person that engages, or offers or proposes respect to engage, in any of the foregoing, or otherwise take or cause any action or make any statement inconsistent with any of the foregoing; or;
(oxiii) take any action challenging the validity or enforceability of any of the provisions of this AgreementSection 2(a) or publicly disclose, or make cause or in facilitate the public disclosure (including the filing of any way advance document with the SEC or any request other governmental agency or any disclosure to any journalist, member of the media or securities analyst) of, any intent, purposes, plan or proposal that to take any action challenging the validity or enforceability of any provisions of this Section 2(a). The foregoing provisions of this Section 2(a) shall not be deemed to prohibit (i) the North Tide Group and their representatives from communicating privately with the Company's directors, FSFRofficers or advisors so long as such communications are not intended to, and would not reasonably be expected to, require any public disclosure of such communications; (ii) the North Tide Group from taking actions, beginning not before the earlier to occur of (A) February 13, 2015 or (B) the date that is 45 days prior to the deadline for the submission of stockholder director nominations for the 2015 Annual Meeting, in furtherance of privately identifying director candidates in connection with the 2015 Annual Meeting so long as such actions do not create a public disclosure obligation for the North Tide Group or any of the North Tide Affiliates and are undertaken on a confidential basis, without contacting any stockholder of the Company and in accordance in all material respects with the North Tide Group's normal practices in similar circumstances; or (iii) the 2014 New Nominees from taking any actions that may be taken solely in their capacity as members of the Board or in accordance with their respective fiduciary duties to all stockholders of the FSFR Board amend, modify or waive any provision Company so long as such actions are consistent with the North Tide Group's and such 2014 New Nominee's obligations and representations under the other sections of this Agreement. Further, the foregoing provisions of this Section 2(a) shall not limit the ability of the North Tide Group, except as otherwise provided in Section 1(d), to vote its shares of Common Stock or announce its opposition to any Board-approved proposals on any matter submitted to a vote of the stockholders, including with respect to any Extraordinary Transaction, to the extent such proposals are not supported by Xx. Xxxxxxxx in his capacity as a member of the Board.
(b) For purposes of this Agreement:
(i) the terms "person" or "persons" shall mean any individual, corporation (including not-for-profit), general or limited partnership, limited liability or unlimited liability company, joint venture, estate, trust, association, organization or other entity of any kind or nature.
Appears in 3 contracts
Samples: Nomination and Standstill Agreement (North Tide Capital, LLC), Nomination and Standstill Agreement (Healthways, Inc), Nomination and Standstill Agreement (Healthways, Inc)
Standstill. Effective from Prior to the date of this Agreement and continuing until the later of the certification of votes for the Company 2017 Annual Meeting of Stockholders or the certification of votes for the FSFR (as defined below) 2017 Annual Meeting of Stockholders (the “Standstill Period”)Termination Date, except to the extent expressly permitted by the terms of as otherwise provided in this Section 3 or elsewhere in this Agreement, none without Disinterested Director Approval, Coliseum shall not, directly or indirectly:
(a) (i) acquire, offer or seek to acquire, agree to acquire or acquire rights to acquire (except by way of stock dividends or other distributions or offerings made available to holders of Voting Securities of the Sellers shall, and Sellers shall cause their respective controlled Affiliates not toCompany generally on a pro rata basis), directly or indirectly, whether by purchase, tender or exchange offer, through the acquisition of control of another person, through swap or hedging transactions or otherwise, any additional Voting Securities of the Company (other than through a broad-based market basket or index) or any voting rights decoupled from the underlying Voting Securities that would cause Coliseum’s ownership of Voting Securities to exceed 44.4% of the total outstanding Common Stock; or (ii) sell its shares of Common Stock, other than in open market sale transactions where the identity of the purchaser is not known and in underwritten widely dispersed public offerings or in a transaction in which the purchaser agrees to be bound by the provisions of this Section 3; provided that the foregoing shall not restrict any acquisition of securities directly from the Company.
(b) (i) nominate, recommend for nomination or give notice of an intent to nominate or recommend for nomination a person for election at any Stockholder Meeting at which the Company’s directors are to be elected; (ii) knowingly initiate, encourage or participate in any mannersolicitation of proxies in respect of any election contest or removal contest with respect to the Company’s directors; (iii) submit, initiate, make or be a proponent of any stockholder proposal for consideration at, or bring any other business before, any Stockholder Meeting; (iv) knowingly initiate, encourage or participate in any solicitation of proxies in respect of any stockholder proposal for consideration at, or other business brought before, any Stockholder Meeting; or (v) knowingly initiate, encourage or participate in any “withhold” or similar campaign with respect to any Stockholder Meeting;
(c) form or join any Section 13 “group” with respect to any Voting Securities of the Company, including in connection with any election or removal contest with respect to the Company’s directors or any stockholder proposal or other business brought before any Stockholder Meeting;
(d) seek publicly, alone or in concert with others:
(a) solicit, or knowingly encourage or in to amend any way engage in any solicitation of, any proxies or consents or become a “participant” in a “solicitation,” directly or indirectly, as such terms are defined in Regulation 14A under the Securities Exchange Act of 1934, as amended (the “Exchange Act”) of proxies or consents (including, without limitation, any solicitation of consents that seeks to call a special meeting of stockholders or by encouraging or participating in any “withhold” or similar campaign), in each case, with respect to securities provision of the Company Charter or Fifth Street Senior Floating Rate Corp. (“FSFR”) or any securities convertible or exchangeable into or exercisable for any such securities (collectively, “securities of the Companies”);
(b) make any proposal for consideration by stockholders at any annual or special meeting of the stockholders of the Company or FSFR, whether pursuant to Rule 14a-8 under the Exchange Act, either such company’s constituent documents or otherwise;
(c) knowingly advise, encourage, support, instruct or influence any person with respect to any of the matters covered by this Section 3.1 or with respect to the voting or disposition of any securities of the Companies at any annual or special meeting of stockholders of the Company or FSFR, except in accordance with Section 3.4, or seek to do so;
(d) agree, attempt, seek or propose to deposit any securities of the Companies in any voting trust or similar arrangement, or subject any securities of the Companies to any arrangement or agreement with respect to the voting thereof, except in accordance with Section 3.4Bylaws;
(e) knowingly seek or encourage (i) make any person to submit nominations in furtherance of a “contested solicitation” or take other action for the election or removal of directors public proposal with respect to or (ii) make any public statement or otherwise publicly seek to encourage, advise or assist any person in so publicly encouraging or advising with respect to: (A) any change in the Company number or FSFRterm of directors serving on the Board or the filling of any vacancies on the Board, including (B) any action that is intended to, change in the capitalization or is reasonably likely to result in, the replacement dividend policy of the investment advisor Company, (C) any other change in the Company’s management, governance, corporate structure, affairs or policies, (D) any Extraordinary Transaction, (E) causing a class of securities of the Company or FSFRto be delisted from, or to cease to be authorized to be quoted on, any securities exchange or (F) causing a modification class of equity securities of the Company to the terms or conditions become eligible for termination of either the Company’s or FSFR’s investment advisory agreement;
(f) form, join in or in any way participate in a partnership, limited partnership, syndicate or other group, including, without limitation, a group as defined under registration pursuant to Section 13(d12(g)(4) of the Exchange Act (except such participation related to the reasonable unwinding of any such group currently existing as of the date of this Agreement) with any person who is not identified on Schedule I hereto (any such person, a term “Third Party”), with respect to any securities of the Companies or take any other action that would interfere with the ability of Sellers to vote in accordance with this Agreement;
(g) make any disclosure, communication, announcement or statement regarding any intent, purpose, plan or proposal with respect to the FSC Board of Directors (the “Company Board”), the Company investment advisor or the terms and conditions of the Company’s investment advisory agreement, the FSFR Board of Directors (the “FSFR Board”), the FSFR investment advisor or the terms and conditions of FSFR’s investment advisory agreement, the Company, FSFR, or the management, policies or affairs of either the Company or FSFR, or with respect to this Agreement, that is inconsistent with the provisions of this Agreement;
(h) effect or seek to effect, offer or propose to effect, cause or participate in, or in any way assist or facilitate any other person to effect or seek, offer or propose to effect or participate in, Extraordinary Transaction” means any tender or offer, exchange offer, merger, consolidation, acquisition, scheme, arrangement, business combination, sale, recapitalization, reorganization, sale or acquisition of assets, liquidation, dissolution, extraordinary dividend, significant share repurchase restructuring or other extraordinary transaction involving the Company, FSFR or either of their investment advisors, or any of their subsidiaries or joint ventures or any of their respective securities (each, an “Extraordinary Transaction”), or make any statement or disclosure regarding any intent, purpose, plan or proposal with respect to any Extraordinary Transaction or this Agreement that is inconsistent with the provisions of this Agreement, including any intent, purpose, plan or proposal that is conditioned on, or would require waiver, amendment, nullification or invalidation of, any provision of this Agreement or take any action that could require the Company or FSFR to make any public disclosure relating to any such intent, purpose, plan, proposal or condition;
(i) (i) call or seek to call or request the calling of any meeting of stockholders at either the Company or FSFR, including by written consent, (ii) seek, alone or in concert with others, representation on, or nominate any candidate to, the Company Board or the FSFR Board, (iii) seek the removal of any member of the Company Board or the FSFR Board, (iv) seek, alone or in concert with others, or support any a Third Party that, in seekingeach case, to replace the investment advisor results in a change in control of the Company or the investment advisor sale of FSFRsubstantially all of its assets; provided, (v) solicit consents from however, that solely for the Company or FSFR stockholders or otherwise act or seek purposes of the foregoing definition, Coliseum shall be deemed not to act by written consent, (vi) conduct a referendum have control of the Company or FSFR stockholders or (vii) make a request for any stockholders list or any other books and records in Sellers’ capacity as a Company or FSFR stockholder;
(j) purchase or cause to be purchased or otherwise acquire or agree to acquire beneficial ownership of any securities issued by the Company or FSFR, or any securities convertible into or exchangeable for securities issued by the Company or FSFR;
(k) sell, offer to sell, give, pledge, grant a security interest in, encumber, assign, grant any option for the sale of or otherwise transfer or dispose of (each, a “Transfer”) any securities issued by the Company and/or any securities convertible into or exchangeable for securities issued by the Company, unless any Buyer fails to timely perform each of its obligations under Section 1.2(b), Section 1.3(c) and/or Section 1.3(d)(i) of this Agreement;
(l) institute); provided, solicit or joinhowever, as a party, or knowingly assist any other person in instituting, soliciting or joining, any litigation, arbitration or other proceeding against the Company or FSFR or any of their current or former directors or officers (including derivative actions), other than (i) litigation to enforce the provisions of this Agreement and (ii) counterclaims with respect to any proceeding initiated by, or on behalf of, a party to this Agreement or FSFR against Sellers;
(m) enter into or engage in any short sale or purchase, sale or grant of any option, warrant, derivative, convertible security, stock appreciation right or other similar right (including, without limitation, any put or call option or swap transaction) with respect to or having any measurement relating to any securities of the Companies;
(n) enter into any negotiations, arrangements, understanding or agreements (whether written or oral) with, or advise, finance, assist, seek to knowingly persuade or encourage, any Third Party to take any action or make any statement in connection with any of the foregoing, or make any investment in or enter into any arrangement with any other person that engages, or offers or proposes to engage, in any of the foregoing, or otherwise take or cause any action or make any statement inconsistent with any of the foregoing; or
(o) take any action challenging the validity or enforceability of this Agreement, or make or in any way advance any request or proposal that the Company, FSFR, the Company Board or the FSFR Board amend, modify or waive any provision of this Agreement.that
Appears in 2 contracts
Samples: Cooperation Agreement (Purple Innovation, Inc.), Cooperation Agreement (Coliseum Capital Management, LLC)
Standstill. Effective from the date of this Agreement and continuing until the later For so long as any portion of the certification of votes for the Company 2017 Annual Meeting of Stockholders or the certification of votes for the FSFR (as defined below) 2017 Annual Meeting of Stockholders (the “Standstill Period”), except to the extent expressly permitted by the terms of this Agreement, none of the Sellers shall, and Sellers shall cause their respective controlled Affiliates not to, directly or indirectly, in any manner, alone or in concert with othersSenior Loan remains unpaid:
(a) solicit, Subordinate Lender shall waive any rights it may have pursuant to the Subordinate Mortgage to approve or knowingly encourage to consent to any action of Borrower if Senior Lender shall have approved or in any way engage in any solicitation of, any proxies or consents or become a “participant” in a “solicitation,” directly or indirectly, as consented to such terms are defined in Regulation 14A under the Securities Exchange Act of 1934, as amended (the “Exchange Act”) of proxies or consents (including, without limitation, any solicitation of consents that seeks to call a special meeting of stockholders or by encouraging or participating in any “withhold” or similar campaign), in each case, with respect to securities of the Company or Fifth Street Senior Floating Rate Corp. (“FSFR”) or any securities convertible or exchangeable into or exercisable for any such securities (collectively, “securities of the Companies”)action;
(b) make Subordinate Lender shall not, without the prior written consent of Senior Lender take any proposal for consideration by stockholders at any annual or special meeting Enforcement Action (hereinafter defined). For the purposes of this Agreement, the stockholders of the Company or FSFR, whether pursuant to Rule 14a-8 under the Exchange Act, either such company’s constituent documents or otherwise;
(c) knowingly advise, encourage, support, instruct or influence any person with respect to any of the matters covered by this Section 3.1 or term “Enforcement Action” shall mean with respect to the voting Subordinate Loan Documents, the acceleration of all or disposition any part of the Subordinate Loan, any foreclosure proceedings, the exercise of any securities power of sale, the acceptance by the holder of the Companies at any annual or special meeting of stockholders of the Company or FSFR, except in accordance with Section 3.4, or seek to do so;
(d) agree, attempt, seek or propose to deposit any securities of the Companies in any voting trust or similar arrangement, or subject any securities of the Companies to any arrangement or agreement with respect to the voting thereof, except in accordance with Section 3.4;
(e) knowingly seek or encourage any person to submit nominations in furtherance Subordinate Mortgage of a “contested solicitation” deed or take other action for the election or removal assignment in lieu of directors with respect to the Company or FSFR, including any action that is intended to, or is reasonably likely to result inforeclosure, the replacement obtaining of a receiver, the investment advisor seeking of default interest (provided, however, that nothing shall prevent the Company or FSFR, or a modification accrual of such default interest pursuant to the terms or conditions of either the Company’s or FSFR’s investment advisory agreement;
(f) form, join in or in any way participate in a partnership, limited partnership, syndicate or other group, including, without limitation, a group as defined under Section 13(d) of the Exchange Act (except such participation related to the reasonable unwinding of any such group currently existing as of the date of this Agreement) with any person who is not identified on Schedule I hereto (any such person, a “Third Party”), with respect to any securities of the Companies or take any other action that would interfere with the ability of Sellers to vote in accordance with this Agreement;
(g) make any disclosure, communication, announcement or statement regarding any intent, purpose, plan or proposal with respect to the FSC Board of Directors (the “Company Board”Subordinate Note), the Company investment advisor taking of possession or the terms and conditions control of the Company’s investment advisory agreementProperty, the FSFR Board suing on any of Directors (the “FSFR Board”)Subordinate Note or any guaranty or other obligation contained in the Subordinate Loan Documents, the FSFR investment advisor exercising of any banker’s lien or the terms and conditions rights of FSFR’s investment advisory agreementset-off or recoupment, the Companycommencement of any bankruptcy, FSFRreorganization or insolvency proceedings against Borrower under any federal or state law, or the management, policies or affairs taking of either the Company or FSFR, or with respect to this Agreement, that is inconsistent with the provisions of this Agreement;
(h) effect or seek to effect, offer or propose to effect, cause or participate in, or in any way assist or facilitate any other person to effect or seekenforcement action against the Property, offer or propose to effect or participate inprovided however that if Senior Lender accelerates the maturity of Borrower’s indebtedness secured by the Senior Loan Documents, any tender or exchange offer, merger, consolidation, acquisition, scheme, arrangement, business combination, recapitalization, reorganization, sale or acquisition of assets, liquidation, dissolution, extraordinary dividend, significant share repurchase or other extraordinary transaction involving then Subordinate Lender may accelerate the Company, FSFR or either of their investment advisors, or any of their subsidiaries or joint ventures or any of their respective securities indebtedness secured by the Subordinate Loan Documents (each, an “Extraordinary Transaction”), or make any statement or disclosure regarding any intent, purpose, plan or proposal with respect to any Extraordinary Transaction or this Agreement that is inconsistent with the provisions of this Agreement, including any intent, purpose, plan or proposal that is conditioned on, or would require waiver, amendment, nullification or invalidation of, any provision of this Agreement or but may not take any further action that could require the Company or FSFR to make any public disclosure relating to any such intent, purpose, plan, proposal or conditionwithout Senior Lender’s consent as aforesaid);
(i) (i) call or seek to call or request the calling of any meeting of stockholders at either the Company or FSFR, including by written consent, (ii) seek, alone or in concert with others, representation on, or nominate any candidate to, the Company Board or the FSFR Board, (iii) seek the removal of any member of the Company Board or the FSFR Board, (iv) seek, alone or in concert with others, or support any Third Party in seeking, to replace the investment advisor of the Company or the investment advisor of FSFR, (v) solicit consents from the Company or FSFR stockholders or otherwise act or seek to act by written consent, (vi) conduct a referendum of the Company or FSFR stockholders or (vii) make a request for any stockholders list or any other books and records in Sellers’ capacity as a Company or FSFR stockholder;
(j) purchase or cause to be purchased or otherwise acquire or agree to acquire beneficial ownership of any securities issued by the Company or FSFR, or any securities convertible into or exchangeable for securities issued by the Company or FSFR;
(k) sell, offer to sell, give, pledge, grant a security interest in, encumber, assign, grant any option for the sale of or otherwise transfer or dispose of (each, a “Transfer”) any securities issued by the Company and/or any securities convertible into or exchangeable for securities issued by the Company, unless any Buyer fails to timely perform each of its obligations under Section 1.2(b), Section 1.3(c) and/or Section 1.3(d)(i) of this Agreement;
(l) institute, solicit or join, as a party, or knowingly assist any other person in instituting, soliciting or joining, any litigation, arbitration or other proceeding against the Company or FSFR or any of their current or former directors or officers (including derivative actions), other than (i) litigation to enforce the provisions of this Agreement and (ii) counterclaims with respect to any proceeding initiated by, or on behalf of, a party to this Agreement or FSFR against Sellers;
(m) enter into or engage in any short sale or purchase, sale or grant of any option, warrant, derivative, convertible security, stock appreciation right or other similar right (including, without limitation, any put or call option or swap transaction) with respect to or having any measurement relating to any securities of the Companies;
(n) enter into any negotiations, arrangements, understanding or agreements (whether written or oral) with, or advise, finance, assist, seek to knowingly persuade or encourage, any Third Party to take any action or make any statement in connection with any of the foregoing, or make any investment in or enter into any arrangement with any other person that engages, or offers or proposes to engage, in any of the foregoing, or otherwise take or cause any action or make any statement inconsistent with any of the foregoing; or
(o) take any action challenging the validity or enforceability of this Agreement, or make or in any way advance any request or proposal that the Company, FSFR, the Company Board or the FSFR Board amend, modify or waive any provision of this Agreement.
Appears in 2 contracts
Samples: Operating Agreement (New York Times Co), Operating Agreement (New York Times Co)
Standstill. Effective from (a) The Purchaser agrees that, during the date Standstill Period, it shall not, and shall cause each of this Agreement its Affiliates (collectively and continuing until the later of the certification of votes for the Company 2017 Annual Meeting of Stockholders or the certification of votes for the FSFR (as defined below) 2017 Annual Meeting of Stockholders (individually, the “Standstill PeriodPurchaser Affiliates,”), except to the extent expressly permitted by the terms of this Agreement, none of the Sellers shall, and Sellers shall cause their respective controlled Affiliates ) not to, directly or indirectly, in any manner, alone or in concert with others:others take any of the following actions without the prior consent of the Company (acting through a resolution of the Company’s directors not including any SLP Affiliated Directors):
(ai) solicitmake, or knowingly encourage engage in, or in any way engage in any solicitation ofparticipate in, directly or indirectly, any “solicitation” of proxies (as such terms are used in the proxy rules of the SEC but without regard to the exclusion set forth in Rule 14a-1(l)(2)(iv)) or consents to vote, or seek to advise, encourage or influence any person with respect to the voting of any securities of the Company for the election of individuals to the Board of Directors or to approve any proposals submitted to a vote of the stockholders of the Company that have not been authorized and approved, or recommended for approval, by the Board of Directors, or become a “participant” in a any contested “solicitation,” directly or indirectly, (as such terms are defined in Regulation 14A or used under the Securities Exchange Act) for the election of directors with respect to the Company, other than a “solicitation” or acting as a “participant” in support of all of the nominees of the Board of the Directors at any stockholder meeting, or make or be the proponent of any stockholder proposal (pursuant to Rule 14a-8 under the Exchange Act of 1934or otherwise);
(ii) form, as amended (the “Exchange Act”) of proxies join, encourage, influence, advise or consents (including, without limitation, in any solicitation of consents that seeks to call a special meeting of stockholders or by encouraging or participating way participate in any “withholdgroup” or similar campaign), (as such term is defined in each case, Section 13(d)(3) of the Exchange Act) with any persons who are not Purchaser Affiliates with respect to any securities of the Company or Fifth Street Senior Floating Rate Corp. (“FSFR”) otherwise in any manner agree, attempt, seek or propose to deposit any securities of the Company or any securities convertible or exchangeable into or exercisable for any such securities (collectively, “securities of the Companies”);
(b) make any proposal for consideration by stockholders at any annual or special meeting of the stockholders of the Company or FSFR, whether pursuant to Rule 14a-8 under the Exchange Act, either such company’s constituent documents or otherwise;
(c) knowingly advise, encourage, support, instruct or influence any person with respect to any of the matters covered by this Section 3.1 or with respect to the voting or disposition of any securities of the Companies at any annual or special meeting of stockholders of the Company or FSFR, except in accordance with Section 3.4, or seek to do so;
(d) agree, attempt, seek or propose to deposit any securities of the Companies in any voting trust or similar arrangement, or subject any securities of the Companies Company to any arrangement or agreement with respect to the voting thereof, except in accordance with Section 3.4as expressly permitted by this Agreement;
(eiii) knowingly seek acquire, offer or encourage any person propose to submit nominations in furtherance of a “contested solicitation” or take other action for the election or removal of directors with respect to the Company or FSFR, including any action that is intended toacquire, or is reasonably likely agree to result inacquire, directly or indirectly, whether by purchase, tender or exchange offer, through the replacement acquisition of the investment advisor control of the Company or FSFRanother person, or a modification to the terms or conditions of either the Company’s or FSFR’s investment advisory agreement;
(f) form, join in or in any way participate in by joining a partnership, limited partnership, syndicate or other group, including, without limitation, group (including any group of persons that would be treated as a group as defined single “person” under Section 13(d) of the Exchange Act Act), through swap or hedging transactions or otherwise, any securities of the Company or any rights decoupled from the underlying securities that would result in the Purchaser (except together with the Purchaser Affiliates), having Beneficial Ownership in more than 10.0% in the aggregate of the shares of the Company Common Stock outstanding at such participation related time (assuming all the Notes are converted on a fully physical settlement basis), excluding any issuance by the Company of shares of Company Common Stock or options, warrants or other rights to acquire Company Common Stock (or the exercise thereof) to any SLP Affiliated Director as compensation for their membership on the Board of Directors; provided that nothing herein will require any Notes or shares of Company Common Stock to be sold to the reasonable unwinding extent the Purchaser and the Purchaser Affiliates, collectively, exceeds the ownership limit under this paragraph as the result of a share repurchase or any such group currently existing as other Company actions that reduces the number of outstanding shares of Company Common Stock. For purposes of this Section 4.03(a)(iii), no securities Beneficially Owned by a portfolio company of the date Purchaser or its Affiliates will be deemed to be Beneficially Owned by Purchaser or any of its Affiliates only so long as (x) such portfolio company is not an Affiliate of the Purchaser for purposes of this Agreement, (y) neither the Purchaser nor any Purchaser Affiliate has encouraged, instructed, directed, supported, assisted or advised, or coordinated with, such portfolio company with respect to the acquisition, voting or disposition of securities of the Company by the portfolio company and (z) neither the Purchaser or any of its Affiliates is a member of a group (as such term is defined in Section 13(d)(3) of the Exchange Act) with any person who is not identified on Schedule I hereto (any such person, a “Third Party”), that portfolio company with respect to any securities of the Companies or take any other action that would interfere with the ability of Sellers to vote in accordance with this AgreementCompany;
(giv) make transfer, directly or indirectly, through swap or hedging transactions or otherwise, the Notes or Company Common Stock Beneficially Owned by the Purchaser or its Affiliates or any disclosureeconomic or voting rights decoupled from the underlying securities held by the Purchaser or its Affiliates to any Third Party that, communication, announcement or statement regarding any intent, purpose, plan or proposal with respect to the FSC Board knowledge of Directors the Purchaser at the time it enters into such transaction, would result in such Third Party, together with its Affiliates and Associates, having Beneficial Ownership in the aggregate of more than 12.5% of the shares of Company Common Stock outstanding at such time; provided, that (x) the “Company Board”)Purchaser or its Affiliates, as applicable shall provide written notice to the Company investment advisor if it has actual knowledge (after good faith inquiry) at the time of such transaction that such transfer, directly or indirectly, through swap or hedging transactions or otherwise, of its Notes or Company Common Stock to any Third Party would result in such Third Party, together with its Affiliates and Associates, having Beneficial Ownership in the terms and conditions aggregate of more than 9.9% of the Company’s investment advisory agreementshares of Company Common Stock outstanding at such time and (y) nothing in this clause (iv) shall in any way prohibit, the FSFR Board of Directors limit or restrict any transfer (the “FSFR Board”)A) pursuant to a Permitted Loan or any foreclosure thereunder, the FSFR investment advisor (B) pursuant to a Third Party Tender/Exchange Offer or the terms and conditions of FSFR’s investment advisory agreementpursuant to a merger, consolidation or similar transaction entered into by the Company, FSFR(C) in a bona fide underwritten public offering or in a broker transaction pursuant to Rule 144 (provided that, in relation to such Rule 144 offering, the Purchaser has not instructed or encouraged such broker to sell such Notes or Company Common Stock to a specific Third Party or class of Third Parties which would result in a violation of this clause (iv)) or (D) in a derivatives transaction entered into with, or the managementpurchased from, policies a bank, broker-dealer or affairs of either the Company or FSFR, or with respect to this Agreement, other recognized derivatives dealer that is inconsistent with not a hedge fund or activist investor or, to the provisions knowledge of this AgreementPurchase, an Affiliate of a hedge fund or activist investor;
(hv) effect or seek to effect, offer or propose to effect, cause or participate in, or in any way assist or facilitate any other person to effect or seek, offer or propose to effect or participate in, any tender or exchange offer, merger, consolidation, acquisition, scheme, scheme of arrangement, business combination, recapitalization, reorganization, sale or acquisition of all or substantially all assets, liquidation, dissolution, extraordinary dividend, significant share repurchase dissolution or other extraordinary transaction involving the Company, FSFR or either of their investment advisors, Company or any of their subsidiaries its Subsidiaries or joint ventures or any of their respective securities (each, an “Extraordinary Transaction”), or make any public statement with respect to an Extraordinary Transaction; provided, however, that this clause shall not preclude the tender by the Purchaser or disclosure regarding a Purchaser Affiliate of any intent, purpose, plan securities of the Company into any Third Party Tender/Exchange Offer (and any related conversion of Notes to the extent required to effect such tender) or proposal the vote by the Purchaser or a Purchaser Affiliate of any voting securities of the Company with respect to any Extraordinary Transaction or this Agreement that is inconsistent in accordance with the provisions recommendation of this Agreement, including any intent, purpose, plan or proposal that is conditioned on, or would require waiver, amendment, nullification or invalidation of, any provision the Board of this Agreement or take any action that could require the Company or FSFR to make any public disclosure relating to any such intent, purpose, plan, proposal or conditionDirectors;
(ivi) (iA) call or seek to call or request the calling of any meeting of stockholders at either of the Company or FSFRCompany, including by written consent, (iiB) seekseek representation on the Board of Directors, alone or in concert with others, representation on, or nominate any candidate to, the Company Board or the FSFR Boardexcept as expressly set forth herein, (iiiC) seek the removal of any member of the Company Board or the FSFR Boardof Directors (other than an SLP Affiliated Director in accordance with Section 4.07), (iv) seek, alone or in concert with others, or support any Third Party in seeking, to replace the investment advisor of the Company or the investment advisor of FSFR, (vD) solicit consents from the Company or FSFR stockholders or otherwise act or seek to act by written consentconsent with respect to the Company, (viE) conduct a referendum of stockholders of the Company or FSFR stockholders or (viiF) make a request for any stockholders stockholder list or any other Company books and records in Sellers’ capacity as a Company records, whether pursuant to Section 220 of the DGCL or FSFR stockholderotherwise;
(j) purchase or cause to be purchased or otherwise acquire or agree to acquire beneficial ownership of any securities issued by the Company or FSFR, or any securities convertible into or exchangeable for securities issued by the Company or FSFR;
(k) sell, offer to sell, give, pledge, grant a security interest in, encumber, assign, grant any option for the sale of or otherwise transfer or dispose of (each, a “Transfer”) any securities issued by the Company and/or any securities convertible into or exchangeable for securities issued by the Company, unless any Buyer fails to timely perform each of its obligations under Section 1.2(b), Section 1.3(c) and/or Section 1.3(d)(i) of this Agreement;
(l) institute, solicit or join, as a party, or knowingly assist any other person in instituting, soliciting or joining, any litigation, arbitration or other proceeding against the Company or FSFR or any of their current or former directors or officers (including derivative actions), other than (i) litigation to enforce the provisions of this Agreement and (ii) counterclaims with respect to any proceeding initiated by, or on behalf of, a party to this Agreement or FSFR against Sellers;
(m) enter into or engage in any short sale or purchase, sale or grant of any option, warrant, derivative, convertible security, stock appreciation right or other similar right (including, without limitation, any put or call option or swap transaction) with respect to or having any measurement relating to any securities of the Companies;
(n) enter into any negotiations, arrangements, understanding or agreements (whether written or oral) with, or advise, finance, assist, seek to knowingly persuade or encourage, any Third Party to take any action or make any statement in connection with any of the foregoing, or make any investment in or enter into any arrangement with any other person that engages, or offers or proposes to engage, in any of the foregoing, or otherwise take or cause any action or make any statement inconsistent with any of the foregoing; or
(ovii) take any action challenging the validity or enforceability in support of this Agreement, or make any proposal or in any way advance any request that constitutes: (A) controlling or proposal that changing the Board of Directors or management of the Company, FSFRincluding any plans or proposals to change the number or term of directors or to fill any vacancies on the Board of Directors, (B) any material change in the Company Board capitalization or dividend policy of the FSFR Board amendCompany, modify (C) any other material change in the Company’s management, business or waive any provision of this Agreement.corporate structure,
Appears in 2 contracts
Samples: Investment Agreement, Investment Agreement (Symantec Corp)
Standstill. Effective from From the date of this Agreement and continuing until hereof through the later of the certification of votes for the Company 2017 Annual Meeting of Stockholders or the certification of votes for the FSFR (as defined below) 2017 Annual Meeting of Stockholders (the “Standstill Period”)Termination Date, except to the extent expressly permitted by the terms of this Agreement, none of the Sellers no Holder shall, and Sellers shall each Holder agrees to cause their respective controlled Affiliates each member of the Xxxxxxx Group not to, directly or indirectly: (i) make, engage in, or in any mannerway participate in, any “solicitation” of “proxies” (as such terms are used in the Commission’s proxy rules but without regard to the exclusion set forth in Rule 14a-1(l)(2)(iv)) or consents to vote or otherwise solicit consents from or conduct any referendum of shareholders, (ii) call, seek to call, direct or request any meeting of shareholders of the Company, (iii) submit or be the proponent of any proposal for consideration at any meeting of shareholders of the Company (including pursuant to Rule 14a-8 promulgated under the Exchange Act), (iv) seek representation on the Board, seek the removal of any member of the Board or otherwise act, alone or in concert with others:
, to seek to control or influence the management, Board or policies of the Company; provided, however, that nothing herein will limit the ability of the Xxxxxxx Group to nominate a replacement director(s) in accordance with Section 1.02 hereof, (av) solicitengage in any course of conduct with the purpose of causing other Company shareholders to vote contrary to the recommendation of the Board on any matter presented to them for a vote; provided however, such restriction shall not apply to any proposals that have been presented to shareholders for a vote prior to the Standstill Termination Date that are related to a merger, acquisition or knowingly encourage disposition of all or substantially all of the assets of the Company or other business combination involving the Company, (vi) make any request for any stockholder list or Company records, (vii) form, join, encourage, influence, advise or in any way engage in any solicitation of, any proxies or consents or become a “participant” in a “solicitation,” directly or indirectly, as such terms are defined in Regulation 14A under the Securities Exchange Act of 1934, as amended (the “Exchange Act”) of proxies or consents (including, without limitation, any solicitation of consents that seeks to call a special meeting of stockholders or by encouraging or participating participate in any “withholdpartnership, limited partnership, syndicate or other group” or similar campaign), in each case, (within the meaning of Section 13(d)(3) of the Exchange Act) with respect to any securities of the Company or Fifth Street Senior Floating Rate Corp. (“FSFR”) or any securities convertible or exchangeable into or exercisable for any such securities (collectively, “securities of the Companies”);
(b) make any proposal for consideration by stockholders at any annual or special meeting of the stockholders of the Company or FSFR, whether pursuant to Rule 14a-8 under the Exchange Act, either such company’s constituent documents or otherwise;
(c) knowingly advise, encourage, support, instruct or influence any person with respect to any of the matters covered by this Section 3.1 or with respect to the voting or disposition of any securities of the Companies at any annual or special meeting of stockholders of the Company or FSFR, except in accordance with Section 3.4, or seek to do so;
(d) agree, attempt, seek or propose to otherwise deposit any securities of the Companies in any voting trust or similar arrangement, or subject any securities of the Companies Company to any voting trust or arrangement or agreement with respect to the voting thereof; provided, except in accordance with Section 3.4;
(e) knowingly seek or encourage any person to submit nominations in furtherance of a “contested solicitation” or take other action for the election or removal of directors with respect to the Company or FSFRhowever, including any action that is intended to, or is reasonably likely to result in, the replacement of the investment advisor of the Company or FSFR, or a modification to the terms or conditions of either the Company’s or FSFR’s investment advisory agreement;
(f) form, join in or in any way participate in a partnership, limited partnership, syndicate or other group, including, without limitation, a group as defined under Section 13(d) of the Exchange Act (except such participation related to the reasonable unwinding of any such group currently existing as of the date of this Agreement) with any person who is restrictions shall not identified on Schedule I hereto (any such person, a “Third Party”), with respect apply to any securities “group” comprised solely of the Companies all or take any other action that would interfere with the ability some lesser number of Sellers to vote in accordance with this Agreement;
Holders, (gviii) make any disclosure, communication, announcement or statement regarding any intent, purpose, plan or proposal with respect to the FSC Board of Directors (the “Company Board”), the Company investment advisor or the terms and conditions of the Company’s investment advisory agreement, the FSFR Board of Directors (the “FSFR Board”), the FSFR investment advisor or the terms and conditions of FSFR’s investment advisory agreement, the Company, FSFR, or the management, policies or affairs of either the Company or FSFR, or with respect to this Agreement, that is inconsistent with the provisions of this Agreement;
(h) effect or seek to effect, offer or propose to effect, cause or participate in, or in any way assist or facilitate any other person to effect or seek, offer or propose to effect or participate in, any tender or exchange offer, merger, consolidation, acquisition, scheme, arrangement, business combination, recapitalization, reorganization, sale or acquisition of assets, liquidation, dissolution, extraordinary dividend, significant share repurchase liquidation or other extraordinary transaction involving the Company, FSFR or either of their investment advisors, or any of their subsidiaries or joint ventures or any of their respective securities (each, an “Extraordinary Transaction”), or make any statement or disclosure regarding any intent, purpose, plan or proposal with respect to any Extraordinary Transaction or this Agreement that is inconsistent with the provisions of this Agreement, including any intent, purpose, plan or proposal that is conditioned on, or would require waiver, amendment, nullification or invalidation of, any provision of this Agreement or take any action that could require the Company or FSFR to make any public disclosure relating to any such intent, purpose, plan, proposal or condition;
(i) (i) call or seek to call or request the calling of any meeting of stockholders at either the Company or FSFR, including by written consentits subsidiaries, (ii) seek, alone or in concert with others, representation on, or nominate any candidate to, the Company Board or the FSFR Board, (iii) seek the removal of any member of the Company Board or the FSFR Board, (iv) seek, alone or in concert with others, or support any Third Party in seeking, to replace the investment advisor of the Company or the investment advisor of FSFR, (v) solicit consents from the Company or FSFR stockholders or otherwise act or seek to act by written consent, (vi) conduct a referendum of the Company or FSFR stockholders or (vii) make a request for any stockholders list or any other books and records in Sellers’ capacity as a Company or FSFR stockholder;
(j) purchase or cause to be purchased or otherwise acquire or agree to acquire beneficial ownership of any securities issued by the Company or FSFR, or any securities convertible into or exchangeable for securities issued by the Company or FSFR;
(kix) sell, offer or agree to sell, givethrough swap or hedging transactions or otherwise, pledge, grant a security interest in, encumber, assign, grant any option for voting rights decoupled from the sale underlying common stock of or otherwise transfer or dispose of (each, a “Transfer”) any securities issued the Company held by the Company and/or Holders to any securities convertible into or exchangeable for securities issued by the Company, unless any Buyer fails to timely perform each of its obligations under Section 1.2(b), Section 1.3(c) and/or Section 1.3(d)(i) of this Agreement;
(l) institute, solicit or join, as a third party, or knowingly assist any other person in instituting, soliciting or joining, any litigation, arbitration or other proceeding against the Company or FSFR or any of their current or former directors or officers (including derivative actions), other than (i) litigation to enforce the provisions of this Agreement and (ii) counterclaims with respect to any proceeding initiated by, or on behalf of, a party to this Agreement or FSFR against Sellers;
(m) enter into or engage in any short sale or purchase, sale or grant of any option, warrant, derivative, convertible security, stock appreciation right or other similar right (including, without limitation, any put or call option or swap transaction) with respect to or having any measurement relating to any securities of the Companies;
(nx) enter into any discussions, negotiations, arrangements, understanding arrangements or agreements (whether written or oral) with, or advise, finance, assist, seek understandings with any Person other than the Company with respect to knowingly persuade or encourage, any Third Party to take any action or make any statement in connection with any of the foregoing, advise, assist, encourage or make seek to persuade or influence others to take any investment in or enter into any arrangement action with any other person that engages, or offers or proposes respect to engage, in any of the foregoing, foregoing or otherwise announce any plan or proposal to take or cause any action or make any statement inconsistent with respect to any of the foregoing; or
foregoing or (oxi) take publicly request any action challenging waiver or amendment of any of the validity or enforceability of this Agreement, or make or in any way advance any request or proposal that the Company, FSFR, the Company Board or the FSFR Board amend, modify or waive any provision of this Agreementforegoing provisions.
Appears in 2 contracts
Samples: Shareholder Agreement (Zix Corp), Shareholder Agreement (Rockall Emerging Markets Master Fund LTD)
Standstill. Effective from the date of this Agreement and continuing You agree that, for a period until the later earlier of (i) a public announcement of any tender or exchange offer, merger or other business combination involving the Company, any of the certification subsidiaries or assets of votes for the Company 2017 Annual Meeting of Stockholders or the certification subsidiaries constituting a significant portion of votes for the FSFR consolidated assets of the Company and its subsidiaries (a "Sale Transaction"), (ii) September 21, 2007, (iii) such date as the Investor (as such term is defined belowin the SPA) 2017 Annual Meeting or its affiliates do not own 50% of Stockholders the shares purchased in the Stock Purchase Agreement, dated February 15, 2006, by and among the Company, Tinicum Capital Partners, L.P., Tinicum Capital Partners Parallel Fund II, L.P. and Tinicum Inc. (the “Standstill Period”"SPA"), except to or (iv) the extent expressly permitted Board of Directors waives the restrictions in this paragraph 7, unless specifically invited in writing by the terms Company, neither you nor any of this Agreement, none of the Sellers shall, and Sellers shall cause their respective controlled Affiliates not toyour affiliates or Representatives will in any manner, directly or indirectly, in any manner, alone or in concert with others:
: (a) solicitassist, or knowingly encourage or in any way engage in any solicitation of, any proxies or consents or become a “participant” in a “solicitation,” directly or indirectly, as such terms are defined in Regulation 14A under the Securities Exchange Act of 1934, as amended (the “Exchange Act”) of proxies or consents (including, without limitation, any solicitation of consents that seeks to call a special meeting of stockholders or by encouraging or participating in any “withhold” or similar campaign), in each case, with respect to securities of the Company or Fifth Street Senior Floating Rate Corp. (“FSFR”) or any securities convertible or exchangeable into or exercisable for any such securities (collectively, “securities of the Companies”);
(b) make any proposal for consideration by stockholders at any annual or special meeting of the stockholders of the Company or FSFR, whether pursuant to Rule 14a-8 under the Exchange Act, either such company’s constituent documents or otherwise;
(c) knowingly advise, encourage, support, instruct or influence any person with respect to any of the matters covered by this Section 3.1 or with respect to the voting or disposition of any securities of the Companies at any annual or special meeting of stockholders of the Company or FSFR, except in accordance with Section 3.4, or seek to do so;
(d) agree, attempt, seek or propose to deposit any securities of the Companies in any voting trust or similar arrangement, or subject any securities of the Companies to any arrangement or agreement with respect to the voting thereof, except in accordance with Section 3.4;
(e) knowingly seek facilitate or encourage any person to submit nominations in furtherance of a “contested solicitation” or take other action for the election or removal of directors with respect to the Company or FSFR, including any action that is intended to, or is reasonably likely to result in, the replacement of the investment advisor of the Company or FSFR, or a modification to the terms or conditions of either the Company’s or FSFR’s investment advisory agreement;
(f) form, join in or in any way participate in a partnership, limited partnership, syndicate or other group, including, without limitation, a group as defined under Section 13(d) of the Exchange Act (except such participation related to the reasonable unwinding of any such group currently existing as of the date of this Agreement) with any person who is not identified on Schedule I hereto (any such person, a “Third Party”), with respect to any securities of the Companies or take any other action that would interfere with the ability of Sellers to vote in accordance with this Agreement;
(g) make any disclosure, communication, announcement or statement regarding any intent, purpose, plan or proposal with respect to the FSC Board of Directors (the “Company Board”), the Company investment advisor or the terms and conditions of the Company’s investment advisory agreement, the FSFR Board of Directors (the “FSFR Board”), the FSFR investment advisor or the terms and conditions of FSFR’s investment advisory agreement, the Company, FSFR, or the management, policies or affairs of either the Company or FSFR, or with respect to this Agreement, that is inconsistent with the provisions of this Agreement;
(h) effect or seek to effect, offer or propose to effect, cause or participate in, or in any way assist or facilitate any other person to effect or seek, offer or propose (whether publicly or otherwise) to effect or participate in, in (x) any tender Sale Transaction or exchange offer, merger, consolidation, acquisition, scheme, arrangement, business combination, (y) any recapitalization, reorganization, sale or acquisition of assetsrestructuring, liquidation, dissolution, extraordinary dividend, significant share repurchase dissolution or other extraordinary transaction involving with respect to the Company, FSFR or either of their investment advisors, Company or any of their subsidiaries its subsidiaries, it being understood that the foregoing shall not prohibit you or joint ventures your affiliates from effecting or participating in such transaction, (b) engage in any "solicitation" of "proxies" (as such terms are used in the proxy rules of the Securities and Exchange Commission) or consents to vote any voting securities of the Company; (c) form, join or in any way participate in a "group" (as defined under the 0000 Xxx) with unaffiliated third parties with respect to the Company or otherwise act in concert with any person in respect of any such securities; (d) other than by requesting to the Board of Directors of the Company to waive any of their respective securities (eachthe provisions of this Section, an “Extraordinary Transaction”), take any action which would or would reasonably be expected to force the Company to make any statement or disclosure a public announcement regarding any intent, purpose, plan of the types of matters set forth in (a) above; or proposal (e) enter into any discussions or arrangements with any third party (other than your representatives and any financing sources) with respect to any Extraordinary Transaction of the foregoing. The Company agrees that during such period you may request that the Company or this Agreement that is inconsistent with the any of its Representatives, directly or indirectly, amend or waive any provisions of this Agreement, including paragraph. Nothing in this paragraph 7 shall prohibit or be construed to prohibit the Investor from making any intent, purpose, plan or proposal that filings with the Securities and Exchange Commission which the Investor reasonably determines it is conditioned on, or would require waiver, amendment, nullification or invalidation of, any provision of this Agreement or take any action that could require the Company or FSFR required to make any public disclosure relating to any such intent, purpose, plan, proposal or condition;
(i) (i) call or seek to call or request the calling of any meeting of stockholders at either the Company or FSFR, including by written consent, (ii) seek, alone or in concert with others, representation on, or nominate any candidate to, the Company Board or the FSFR Board, (iii) seek the removal of any member of the Company Board or the FSFR Board, (iv) seek, alone or in concert with others, or support any Third Party in seeking, to replace the investment advisor of the Company or the investment advisor of FSFR, (v) solicit consents from the Company or FSFR stockholders or otherwise act or seek to act by written consent, (vi) conduct a referendum of the Company or FSFR stockholders or (vii) make a request for any stockholders list or any other books and records in Sellers’ capacity as a Company or FSFR stockholder;
(j) purchase or cause to be purchased or otherwise acquire or agree to acquire beneficial ownership of any securities issued by the Company or FSFR, or any securities convertible into or exchangeable for securities issued by the Company or FSFR;
(k) sell, offer to sell, give, pledge, grant a security interest in, encumber, assign, grant any option for the sale of or otherwise transfer or dispose of (each, a “Transfer”) any securities issued by the Company and/or any securities convertible into or exchangeable for securities issued by the Company, unless any Buyer fails to timely perform each of its obligations under Section 1.2(b), Section 1.3(c) and/or Section 1.3(d)(i) of this Agreement;
(l) institute, solicit or join, as a party, or knowingly assist any other person in instituting, soliciting or joining, any litigation, arbitration or other proceeding against the Company or FSFR or any of their current or former directors or officers (including derivative actions), other than (i) litigation to enforce the provisions of this Agreement and (ii) counterclaims with respect to any proceeding initiated by, or on behalf of, a party to this Agreement or FSFR against Sellers;
(m) enter into or engage in any short sale or purchase, sale or grant of any option, warrant, derivative, convertible security, stock appreciation right or other similar right (including, without limitation, any put or call option or swap transaction) with respect to or having any measurement relating to any securities of the Companies;
(n) enter into any negotiations, arrangements, understanding or agreements (whether written or oral) with, or advise, finance, assist, seek to knowingly persuade or encourage, any Third Party to take any action or make any statement in connection with any of the foregoing, or make any investment in or enter into any arrangement with any other person that engages, or offers or proposes to engage, in any of the foregoing, or otherwise take or cause any action or make any statement inconsistent with any of the foregoing; or
(o) take any action challenging the validity or enforceability of this Agreement, or make or in any way advance any request or proposal that the Company, FSFR, the Company Board or the FSFR Board amend, modify or waive any provision of this Agreementmake.
Appears in 2 contracts
Samples: Stock Purchase Agreement (Transtechnology Corp), Stock Purchase Agreement (Tinicum Capital Partners Ii Lp)
Standstill. Effective (a) For a period of six (6) years from the date of this Agreement and continuing until the later of the certification of votes for the Company 2017 Annual Meeting of Stockholders or the certification of votes for the FSFR (as defined below) 2017 Annual Meeting of Stockholders Closing (the “Standstill Period”), except to the extent expressly permitted by Investor shall not, and the terms of this Agreement, Investor shall ensure that none of the Sellers its Affiliates shall, and Sellers nor shall cause their respective controlled Affiliates not any of the foregoing Persons act in concert with any other Person to, directly or indirectly, without the prior consent of a majority of the At-Large Directors who are Independent Directors:
(i) acquire or agree to acquire (whether by purchase, tender or exchange offer, through acquisition of control of another Person, by joining a 13D Group, through the use of a derivative instrument or voting agreement, or otherwise), Beneficial Ownership of any Equity Securities, or any Economic Right or Voting Right to or regarding any Equity Securities, or authorize or make a tender offer, exchange offer or other offer or proposal, whether oral or written, to acquire Equity Securities, in each case, if the effect of such acquisition would be that the Common Stock Beneficially Owned in the aggregate by the Investor and its Affiliates (including, without limitation, any 13D Group of which any Investor or any Affiliate thereof is a member), or with respect to which the Investor, its Affiliates or any such 13D Group would have Economic Rights or Voting Rights, would exceed the Standstill Limit (it being understood that in the event that there shall be more than one (1) Investor, all shares Beneficially Owned and all Economic Rights and Voting Rights held by all Investors and all other Persons that are participants in any manner13D Group of which any Investor is a member shall be aggregated, and deemed Beneficially Owned and held by each Investor, for purposes of this Section 3.2(a)(i));
(ii) (A) make or in any way participate in any “solicitation” of “proxies” (as such terms are used in the rules and regulations of the SEC) with respect to any Voting Stock, or (B) seek to advise or influence any Person with respect to the voting of any Voting Stock (other than (x) the Investor or any Affiliate or (y) in accordance with and consistent with the recommendation of the Board);
(iii) deposit any Voting Stock or Series B Shares in a voting trust or, except as otherwise provided or contemplated herein, subject any Voting Stock or Series B Shares to any arrangement or agreement with any Person (other than between the Investor and any of its First Tier Affiliates) with respect to the voting of such Voting Stock or Series B Shares;
(iv) join a 13D Group (other than a group comprising solely of the Investor and its Permitted Transferees) or other group, or otherwise act in concert with any third Person for the purpose of acquiring, holding, voting or disposing of Voting Stock, Series B Shares or Convertible Securities;
(v) effect or seek, offer or propose (whether publicly or otherwise) to effect any Change of Control or any acquisition of Equity Securities in excess of the Standstill Limit;
(vi) otherwise act, alone or in concert with others:
(a) solicit, or knowingly encourage or in any way engage in any solicitation of, any proxies or consents or become a “participant” in a “solicitation,” directly or indirectly, as such terms are defined in Regulation 14A under the Securities Exchange Act of 1934, as amended (the “Exchange Act”) of proxies or consents (including, without limitation, any solicitation of consents that seeks to call a special meeting of stockholders or by encouraging or participating in any “withhold” or similar campaign), in each case, with respect to securities of the Company or Fifth Street Senior Floating Rate Corp. (“FSFR”) or any securities convertible or exchangeable into or exercisable for any such securities (collectively, “securities of the Companies”);
(b) make any proposal for consideration by stockholders at any annual or special meeting of the stockholders of the Company or FSFR, whether pursuant to Rule 14a-8 under the Exchange Act, either such company’s constituent documents or otherwise;
(c) knowingly advise, encourage, support, instruct or influence any person with respect to any of the matters covered by this Section 3.1 or with respect to the voting or disposition of any securities of the Companies at any annual or special meeting of stockholders of the Company or FSFR, except in accordance with Section 3.4, or seek to do so;
(d) agree, attempt, seek or propose to deposit any securities of the Companies in any voting trust or similar arrangement, or subject any securities of the Companies to any arrangement or agreement with respect to the voting thereof, except in accordance with Section 3.4;
(e) knowingly seek or encourage any person to submit nominations in furtherance of a “contested solicitation” or take other action for the election or removal of directors with respect to the Company or FSFR, including any action that is intended to, or is reasonably likely to result in, the replacement of the investment advisor of the Company or FSFR, or a modification to the terms or conditions of either the Company’s or FSFR’s investment advisory agreement;
(f) form, join in or in any way participate in a partnership, limited partnership, syndicate or other group, including, without limitation, a group as defined under Section 13(d) of the Exchange Act (except such participation related to the reasonable unwinding of any such group currently existing as of the date of this Agreement) with any person who is not identified on Schedule I hereto (any such person, a “Third Party”), with respect to any securities of the Companies or take any other action that would interfere with the ability of Sellers to vote in accordance with this Agreement;
(g) make any disclosure, communication, announcement or statement regarding any intent, purpose, plan or proposal with respect to the FSC Board of Directors (the “Company Board”), the Company investment advisor or the terms and conditions of the Company’s investment advisory agreement, the FSFR Board of Directors (the “FSFR Board”), the FSFR investment advisor or the terms and conditions of FSFR’s investment advisory agreement, the Company, FSFR, or the management, policies or affairs of either the Company or FSFR, or with respect to this Agreement, that is inconsistent with the provisions of this Agreement;
(h) effect or seek to effect, offer or propose to effect, cause or participate in, or in any way assist or facilitate any other person to effect or seek, offer or propose (whether publicly or otherwise) to effect control of the management, Board or participate in, any tender or exchange offer, merger, consolidation, acquisition, scheme, arrangement, business combination, recapitalization, reorganization, sale or acquisition policies of assets, liquidation, dissolution, extraordinary dividend, significant share repurchase or other extraordinary transaction involving the Company, FSFR or either of their investment advisors, or any of their subsidiaries or joint ventures or any of their respective securities ; or
(each, an “Extraordinary Transaction”), or make any statement or disclosure regarding any intent, purpose, plan or proposal with respect to any Extraordinary Transaction or this Agreement that is inconsistent with the provisions of this Agreement, including any intent, purpose, plan or proposal that is conditioned on, or would require waiver, amendment, nullification or invalidation of, any provision of this Agreement or vii) otherwise take any action that would or could require reasonably be expected to compel the Company or FSFR to make a public announcement (including any public disclosure relating required to be made in any such intent, purpose, plan, proposal or condition;
(iSEC filing under the rules and regulations of the SEC) (i) call or seek to call or request regarding any of the calling of any meeting of stockholders at either matters set forth in this Section 3.2(a). Notwithstanding the Company or FSFR, including by written consent, (ii) seek, alone or in concert with others, representation on, or nominate any candidate toforegoing, the Company Board or the FSFR Board, restrictions contained in this Section 3.2(a) shall not (iiiA) seek the removal of any member of the Company Board or the FSFR Board, (iv) seek, alone or in concert with others, or support any Third Party in seeking, to replace the investment advisor of the Company or the investment advisor of FSFR, (v) solicit consents from the Company or FSFR stockholders or otherwise act or seek to act by written consent, (vi) conduct a referendum of the Company or FSFR stockholders or (vii) make a request for any stockholders list or any other books and records in Sellers’ capacity as a Company or FSFR stockholder;
(j) purchase or cause to be purchased or otherwise acquire or agree to acquire beneficial ownership of any securities issued by the Company or FSFR, or any securities convertible into or exchangeable for securities issued by the Company or FSFR;
(k) sell, offer to sell, give, pledge, grant a security interest in, encumber, assign, grant any option for the sale of or otherwise transfer or dispose of (each, a “Transfer”) any securities issued by the Company and/or any securities convertible into or exchangeable for securities issued by the Company, unless any Buyer fails to timely perform each of its obligations under Section 1.2(b), Section 1.3(c) and/or Section 1.3(d)(i) of this Agreement;
(l) institute, solicit or join, as a party, or knowingly assist any other person in instituting, soliciting or joining, any litigation, arbitration or other proceeding against the Company or FSFR or any of their current or former directors or officers (including derivative actions), other than (i) litigation to enforce the provisions of this Agreement and (ii) counterclaims apply with respect to any proceeding initiated bythe election of the Series B Directors by Investor and its Permitted Transferees in accordance with the Certificate of Designation, (B) prevent, restrict, encumber or on behalf of, a party to this Agreement or FSFR against Sellers;
(m) enter into or engage in any short sale or purchase, sale or grant way limit the ability of any optionSeries B Director to vote on matters, warrantmake non-public statements to officers, derivativeemployees, convertible securityagents, stock appreciation right management or other similar right (including, without limitation, any put Directors or call option or swap transaction) with respect to or having any measurement relating to any securities of the Companies;
(n) enter into any negotiations, arrangements, understanding or agreements (whether written or oral) with, or advise, finance, assist, seek to knowingly persuade or encourage, any Third Party to take any action or make any statement in connection with at any meeting of the foregoingBoard or any committee or subcommittee thereof in his or her capacity as a Director, (C) apply to or restrict any non-public discussions or other non-public communications between or among directors, members, officers, employees or agents of the Investor or any First Tier Affiliate of the Investor, or make (D) restrict any investment disclosure or statements required to be made by any Series B Director or the Investor under applicable law.
(b) If during the Standstill Period the Investor is entitled (as a result of dilution due to future share issuances by the Company) to purchase shares of Common Stock (up to the Standstill Limit) in compliance with this Section 3.2, then unless the Board otherwise approves such purchases shall be made in full compliance with all applicable securities laws, but shall not be made by means of any tender offer.
(c) The restrictions set forth in Section 3.2(a) shall terminate if, at any time during the Standstill Period, (i) the Company publicly announces its entry into a definitive agreement, the consummation of which would result in a Change of Control, and such agreement has not been approved by a majority of the Series B Directors, (ii) the Company shall have waived the terms of its Rights Agreement to permit any Person (other than the Investor or enter into any arrangement with any other person that engages13D Group of which the Investor is a member) to effect a Change of Control or otherwise acquire more than fifteen percent (15%) of the outstanding Common Stock, and such transaction has not been approved by a majority of the Series B Directors, or offers (iii) any Person (other than the Investor or proposes to engage, in any Affiliate of the foregoingInvestor or any 13D Group of which the Investor or any Affiliate of the Investor is a member) shall have commenced a bona fide public tender or exchange offer which if consummated would result in a Change of Control, unless the Board recommends against such tender or exchange offer within ten (10) Business Days after the commencement (as such term is defined in Rule 14d-2 under the Exchange Act) thereof and thereafter continues to oppose such tender or exchange offer. If (x) the restrictions set forth in Section 3.2(a) shall have terminated as provided in this Section 3.2(c), and (y) any definitive agreement described in clause (i) above, or otherwise take transaction described in clause (ii) above, or cause tender or exchange offer described in clause (iii) above, as the case may be, shall have been terminated or abandoned prior to consummation thereof, and (z) any action alternative offer or make proposal by Investor in response to any statement inconsistent such agreement, transaction, tender offer or exchange offer shall also have been abandoned or withdrawn prior to consummation thereof, then the restrictions set forth in Section 3.2(a) shall be reinstated.
(d) If during the Standstill Period the Board elects to commence a process intended to lead to a proposal with any respect to Change of Control of the foregoing; or
Company (o) take any action challenging the validity whether in response to a proposal from a third party or enforceability of this Agreement, or make or in any way advance any request or proposal that the Company, FSFRotherwise), the Company will notify the Investor of the Board’s election and will permit the Investor to participate in such process as a potential bidder, if the Investor so elects, on the same terms and conditions as third party participants. As a condition to the Investor’s participation in such process, the Board may require that the Investor agree in writing with the Company that if such process results in the Board’s approval of a Change of Control transaction with a Person other than the Investor that is a Superior Proposal as compared to any bona fide written proposal from the Investor, then the Investor will consent to such transaction, will raise no objection to the consummation thereof, and will tender shares of Equity Securities Beneficially Owned by it, as applicable, upon the consummation of such transaction. In the event that any such transaction requires the approval of the Company’s stockholders, the Investor agrees, if the matter is brought to a vote at a stockholder meeting, that the Investor will be present, in person or by proxy, as holders of Voting Stock, at all such meetings and be counted for determining the FSFR presence of a quorum at such meetings and will vote for the approval of any such transaction approved and recommended by the Board. So long as the Board amendcontinues to recommend such transaction, modify the Investor agrees to vote and to use reasonable efforts to cause its Affiliates, as the case may be, to vote all shares of Voting Stock Beneficially Owned by the Investor and its Affiliates in favor of such transaction and for the approval of the terms thereof and in opposition to any and all other proposals that are intended, or waive any provision could reasonably be expected to delay, prevent, impair, interfere with, postpone or adversely affect the ability of this Agreementthe Company to consummate the proposals that are approved and recommended by the Board.
Appears in 2 contracts
Samples: Stockholder Agreement (Trident Microsystems Inc), Stockholder Agreement (Trident Microsystems Inc)
Standstill. Effective (a) Each member of the Ramius Group agrees that, from the date of this Agreement and continuing until ten (10) business days prior to the later of the certification of votes deadline set for the Company 2017 submission of shareholder proposals for the 2010 Annual Meeting of Stockholders or Shareholders of the certification of votes for Company established in connection with the FSFR (as defined below) 2017 2010 Annual Meeting of Stockholders (such period, the “Standstill Period”), except to the extent expressly permitted by the terms neither it nor any of this Agreement, none of the Sellers shallits Affiliates or Associates under its control or direction will, and Sellers shall it will cause their respective controlled each of its Affiliates and Associates under its control not to, directly or indirectly, in any manner, alone or in concert with others:
(ai) solicit, or knowingly encourage or in any way engage in any solicitation of, any of proxies or consents or become a “participant” in a “solicitation,” directly or indirectly, (as such terms are defined in Regulation 14A under the Securities Exchange Act of 1934, as amended (or the “Exchange Act”rules or regulations thereunder) of proxies or consents (including, without limitation, any solicitation of consents that seeks to call a special meeting of stockholders or by encouraging or participating in any “withhold” or similar campaignshareholders), in each case, with respect to securities of the Company or Fifth Street Senior Floating Rate Corp. (“FSFR”Company, except in accordance with Sections 1(b) or any securities convertible or exchangeable into or exercisable for any such securities (collectively, “securities of the Companies”)above;
(bii) make any proposal for consideration by stockholders at any annual or special meeting of the stockholders of the Company or FSFR, whether pursuant seek to Rule 14a-8 under the Exchange Act, either such company’s constituent documents or otherwise;
(c) knowingly advise, encourage, support, instruct support or influence any person with respect to any of the matters covered by this Section 3.1 or with respect to the voting or disposition of any securities of the Companies Company at any annual or special meeting of stockholders of the Company or FSFR2008 Annual Meeting and 2009 Annual Meeting, except in accordance with Section 3.4, or seek to do soSections 1(b) above;
(diii) agreeinitiate, attemptpropose or otherwise “solicit” stockholders of the Company for the approval of any stockholder proposal;
(iv) form, seek join or propose in any way participate in any “group” pursuant to Rule 13d-5 promulgated by the SEC under the Exchange Act with respect to any securities of the Company, other than a “group” that includes all or some lesser number of the persons identified as part of the Ramius Group, but does not include any other members who are not currently identified as Ramius Group members as of the date hereof; or
(v) deposit any securities of the Companies Company in any a voting trust or similar arrangement, or subject any securities of the Companies Company to any arrangement or agreement with respect to the voting thereof, except in accordance with Section 3.4;of the securities of the Company.
(eb) knowingly seek or encourage any person to submit nominations As used in furtherance of a this Agreement, the terms “contested solicitationAffiliate” and “Associate” shall have the respective meanings set forth in Rule 12b-2 promulgated by the SEC under the Exchange Act; the terms “beneficial owner” and “beneficial ownership” shall have the same meanings as set forth in Rule 13d-3 promulgated by the SEC under the Exchange Act; and the terms “person” or take other action for the election “persons” shall mean any individual, corporation (including not-for-profit), general or removal of directors with respect to the Company or FSFR, including any action that is intended to, or is reasonably likely to result in, the replacement of the investment advisor of the Company or FSFR, or a modification to the terms or conditions of either the Company’s or FSFR’s investment advisory agreement;
(f) form, join in or in any way participate in a limited partnership, limited partnershipliability company, syndicate joint venture, estate, trust, association, organization or other group, including, without limitation, a group as defined under Section 13(d) of the Exchange Act (except such participation related to the reasonable unwinding entity of any such group currently existing as of the date of this Agreement) with any person who is not identified on Schedule I hereto (any such person, a “Third Party”), with respect to any securities of the Companies kind or take any other action that would interfere with the ability of Sellers to vote in accordance with this Agreement;
(g) make any disclosure, communication, announcement or statement regarding any intent, purpose, plan or proposal with respect to the FSC Board of Directors (the “Company Board”), the Company investment advisor or the terms and conditions of the Company’s investment advisory agreement, the FSFR Board of Directors (the “FSFR Board”), the FSFR investment advisor or the terms and conditions of FSFR’s investment advisory agreement, the Company, FSFR, or the management, policies or affairs of either the Company or FSFR, or with respect to this Agreement, that is inconsistent with the provisions of this Agreement;
(h) effect or seek to effect, offer or propose to effect, cause or participate in, or in any way assist or facilitate any other person to effect or seek, offer or propose to effect or participate in, any tender or exchange offer, merger, consolidation, acquisition, scheme, arrangement, business combination, recapitalization, reorganization, sale or acquisition of assets, liquidation, dissolution, extraordinary dividend, significant share repurchase or other extraordinary transaction involving the Company, FSFR or either of their investment advisors, or any of their subsidiaries or joint ventures or any of their respective securities (each, an “Extraordinary Transaction”), or make any statement or disclosure regarding any intent, purpose, plan or proposal with respect to any Extraordinary Transaction or this Agreement that is inconsistent with the provisions of this Agreement, including any intent, purpose, plan or proposal that is conditioned on, or would require waiver, amendment, nullification or invalidation of, any provision of this Agreement or take any action that could require the Company or FSFR to make any public disclosure relating to any such intent, purpose, plan, proposal or condition;
(i) (i) call or seek to call or request the calling of any meeting of stockholders at either the Company or FSFR, including by written consent, (ii) seek, alone or in concert with others, representation on, or nominate any candidate to, the Company Board or the FSFR Board, (iii) seek the removal of any member of the Company Board or the FSFR Board, (iv) seek, alone or in concert with others, or support any Third Party in seeking, to replace the investment advisor of the Company or the investment advisor of FSFR, (v) solicit consents from the Company or FSFR stockholders or otherwise act or seek to act by written consent, (vi) conduct a referendum of the Company or FSFR stockholders or (vii) make a request for any stockholders list or any other books and records in Sellers’ capacity as a Company or FSFR stockholder;
(j) purchase or cause to be purchased or otherwise acquire or agree to acquire beneficial ownership of any securities issued by the Company or FSFR, or any securities convertible into or exchangeable for securities issued by the Company or FSFR;
(k) sell, offer to sell, give, pledge, grant a security interest in, encumber, assign, grant any option for the sale of or otherwise transfer or dispose of (each, a “Transfer”) any securities issued by the Company and/or any securities convertible into or exchangeable for securities issued by the Company, unless any Buyer fails to timely perform each of its obligations under Section 1.2(b), Section 1.3(c) and/or Section 1.3(d)(i) of this Agreement;
(l) institute, solicit or join, as a party, or knowingly assist any other person in instituting, soliciting or joining, any litigation, arbitration or other proceeding against the Company or FSFR or any of their current or former directors or officers (including derivative actions), other than (i) litigation to enforce the provisions of this Agreement and (ii) counterclaims with respect to any proceeding initiated by, or on behalf of, a party to this Agreement or FSFR against Sellers;
(m) enter into or engage in any short sale or purchase, sale or grant of any option, warrant, derivative, convertible security, stock appreciation right or other similar right (including, without limitation, any put or call option or swap transaction) with respect to or having any measurement relating to any securities of the Companies;
(n) enter into any negotiations, arrangements, understanding or agreements (whether written or oral) with, or advise, finance, assist, seek to knowingly persuade or encourage, any Third Party to take any action or make any statement in connection with any of the foregoing, or make any investment in or enter into any arrangement with any other person that engages, or offers or proposes to engage, in any of the foregoing, or otherwise take or cause any action or make any statement inconsistent with any of the foregoing; or
(o) take any action challenging the validity or enforceability of this Agreement, or make or in any way advance any request or proposal that the Company, FSFR, the Company Board or the FSFR Board amend, modify or waive any provision of this Agreementnature.
Appears in 2 contracts
Samples: Settlement Agreement (Ramius LLC), Settlement Agreement (Agilysys Inc)
Standstill. Effective from From the date of this Agreement and continuing until to the later of the certification of votes for the Company 2017 Annual Meeting of Stockholders or the certification of votes for the FSFR (as defined below) 2017 Annual Meeting of Stockholders Expiration Date (the “Standstill Restricted Period”), the Xxxxx Group shall not, and shall cause its Affiliates and its and their respective principals, directors, general partners, officers, employees, and agents and representatives acting on its or their behalf, as applicable, not to, in any way, directly or indirectly (in each case except to the extent as expressly permitted by the terms of this Agreement, none of the Sellers shall, and Sellers shall cause their respective controlled Affiliates not to, directly or indirectly, in any manner, alone or in concert with others:):
(a) solicit, engage in any “solicitation” (as such term is used in the proxy rules of the Securities and Exchange Commission (the “SEC”)) of proxies or knowingly encourage consents with respect to the election or removal of directors or any other matter or proposal or in any way engage in any solicitation of, any proxies referendum (whether binding or consents otherwise) of stockholders of the Company or become a “participant” in a “solicitation,” directly or indirectly, (as such terms are term is used in the proxy rules of the SEC) in any such solicitation of proxies or consents or in any such referendum other than at the Board’s direction, or encourage, assist, advise or influence any other person or assist any third party in so encouraging, assisting, advising or influencing any person with respect to the giving or withholding of any proxy, consent or other authority in any such solicitation of proxies, consents or other authority or any such referendum other than consistent with the Board’s recommendation in connection with such matter, or publicly disclose how it intends to vote or act on any such matter; provided, however, that the Xxxxx Group may publicly disclose how it intends to vote (i) in any such proxy solicitation or referendum if and solely to the extent required by applicable subpoena, legal process, or other legal requirement (except for such requirement that arises as a result of the actions of the Xxxxx Group otherwise in violation of this Section 3) or (ii) with respect to any Extraordinary Transaction (as defined below) that has already been publicly announced by or on behalf of the Company;
(b) form or join or in Regulation 14A under any way participate in any “group” as defined pursuant to Section 13(d) of the Securities Exchange Act of 1934, as amended (the “Exchange Act”) of proxies or consents (including, without limitation, any solicitation of consents that seeks to call a special meeting of stockholders or by encouraging or participating in any “withhold” or similar campaign), in each case, with respect to securities of the Company or Fifth Street Senior Floating Rate Corp. (“FSFR”) or any securities convertible or exchangeable into or exercisable for any such securities (collectively, “securities of the Companies”);
(b) make any proposal for consideration by stockholders at any annual or special meeting of the stockholders of the Company or FSFR, whether pursuant to Rule 14a-8 under the Exchange Act, either such company’s constituent documents or otherwise;
(c) knowingly advise, encourage, support, instruct or influence any person with respect to any of the matters covered by this Section 3.1 or with respect to the voting or disposition of any securities of the Companies at any annual or special meeting of stockholders of the Company or FSFR, except in accordance with Section 3.4, or seek to do so;
(d) agree, attempt, seek or propose to deposit any securities of the Companies in any voting trust or similar arrangement, or subject any securities of the Companies to any arrangement or agreement with respect to the voting thereof, except in accordance with Section 3.4;
(e) knowingly seek or encourage any person to submit nominations in furtherance of a “contested solicitation” or take other action for the election or removal of directors with respect to the Company or FSFR, including any action that is intended to, or is reasonably likely to result in, the replacement of the investment advisor of the Company or FSFR, or a modification to the terms or conditions of either the Company’s or FSFR’s investment advisory agreement;
(f) form, join in or in any way participate in a partnership, limited partnership, syndicate or other group, including, without limitation, a group as defined under Section 13(d) of the Exchange Act (except such participation related to the reasonable unwinding of any such group currently existing as of the date of this Agreement) with any person who is not identified on Schedule I hereto (any such person, a “Third Party”), with respect to any securities of the Companies or take any Voting Securities, other action that would interfere than solely with the ability of Sellers to vote in accordance with this AgreementXxxxx Group and its Affiliates and Associates;
(g) make any disclosure, communication, announcement or statement regarding any intent, purpose, plan or proposal with respect to the FSC Board of Directors (the “Company Board”), the Company investment advisor or the terms and conditions of the Company’s investment advisory agreement, the FSFR Board of Directors (the “FSFR Board”), the FSFR investment advisor or the terms and conditions of FSFR’s investment advisory agreement, the Company, FSFR, or the management, policies or affairs of either the Company or FSFR, or with respect to this Agreement, that is inconsistent with the provisions of this Agreement;
(hc) effect or seek to effect, offer or propose to effect, cause or participate in, whether alone or in any way assist or facilitate any other person to effect or seek, offer or propose to effect or participate inconcert with others, any tender or offer, exchange offer, merger, consolidation, acquisition, scheme, arrangement, business combination, recapitalization, reorganization, sale or acquisition of assetsrestructuring, liquidation, dissolution, extraordinary dividend, significant share repurchase dissolution or other extraordinary transaction involving the Company, FSFR Company or either a majority of their investment advisors, its securities or any a majority of their subsidiaries or joint ventures or any of their respective securities its assets (each, an “Extraordinary Transaction”)) (it being understood that the foregoing shall not restrict the Xxxxx Group from tendering shares, receiving payment for shares or otherwise participating in any such transaction on the same basis as other stockholders of the Company, or make from participating in any statement or disclosure regarding any intent, purpose, plan or proposal with respect to any Extraordinary Transaction or this Agreement such transaction that is inconsistent with has been approved by the provisions of this Agreement, including any intent, purpose, plan or proposal that is conditioned on, or would require waiver, amendment, nullification or invalidation of, any provision of this Agreement Board); or take any action that could require the Company or FSFR to make any public disclosure relating to any such intent, purpose, plan, proposal or condition;
(i) (i) call or seek to call or request the calling of any meeting of stockholders at either the Company or FSFR, including by written consent, (ii) seekaction, alone or in concert with others, representation onin support of or make any proposal or request that constitutes: (i) advising, controlling, changing or nominate any candidate to, influencing the Company Board or management of the FSFR Company, including any plans or proposals to change the number or term of directors or (except as provided in Section 2 above) to fill any vacancies on the Board, (ii) any material change in the capitalization or dividend policy of the Company, or (iii) seek any other material change in the removal of Company’s executive management, business, corporate strategy or corporate structure;
(d) enter into a voting trust, arrangement or agreement or subject any member Voting Securities to any voting trust, arrangement or agreement, in each case other than solely with other Affiliates of the Xxxxx Group, with respect to Voting Securities now or hereafter owned by it;
(e) institute any litigation against the Company, its directors or its officers, make any “books and records” demands against the Company Board or the FSFR Boardmake application or demand to a court or other person for an inspection, (iv) seek, alone investigation or in concert with others, or support any Third Party in seeking, to replace the investment advisor examination of the Company or the investment advisor of FSFR, its subsidiaries or Affiliates (v) solicit consents from the Company or FSFR stockholders or otherwise act or seek whether pursuant to act by written consent, (vi) conduct a referendum Section 220 of the Company Delaware General Corporation Law or FSFR stockholders or (viiotherwise) make a request for any stockholders list or any other books and records in Sellers’ capacity than as a Company or FSFR stockholder;
(j) purchase or cause may be necessary to be purchased or otherwise acquire or agree to acquire beneficial ownership of any securities issued by enforce the Company or FSFR, or any securities convertible into or exchangeable for securities issued by the Company or FSFR;
(k) sell, offer to sell, give, pledge, grant a security interest in, encumber, assign, grant any option for the sale of or otherwise transfer or dispose of (each, a “Transfer”) any securities issued by the Company and/or any securities convertible into or exchangeable for securities issued by the Company, unless any Buyer fails to timely perform each of its obligations under Section 1.2(b), Section 1.3(c) and/or Section 1.3(d)(i) terms of this Agreement;
(l) institute, solicit or join, as a party, or knowingly assist any other person in instituting, soliciting or joining, any litigation, arbitration or other proceeding against the Company or FSFR or any of their current or former directors or officers (including derivative actions), other than (i) litigation to enforce the provisions of this Agreement and (ii) counterclaims with respect to any proceeding initiated by, or on behalf of, a party to this Agreement or FSFR against Sellers;
(mf) enter into or engage in maintain any short sale or purchaseeconomic, sale or grant of any optioncompensatory, warrant, derivative, convertible security, stock appreciation right pecuniary or other similar right (including, without limitation, arrangements with any put director or call option or swap transaction) with respect to or having any measurement relating to any securities nominee for director of the CompaniesCompany;
(ng) enter into any discussions, negotiations, arrangements, understanding agreements or agreements (whether written or oral) with, or advise, finance, assist, seek understandings with any third party with respect to knowingly persuade or encourage, any Third Party to take any action or make any statement in connection with any of the foregoing, or make advise, assist, intentionally encourage or seek to persuade any investment in or enter into third party to take any arrangement action with any other person that engages, or offers or proposes respect to engage, in any of the foregoing, or otherwise take or cause any action or make any statement inconsistent with any of the foregoing;
(h) seek to call, or request the call of, a special meeting of the stockholders or seek to make, or make, a stockholder proposal at any meeting of the stockholders of the Company;
(i) make any request or submit any proposal to amend or waive any of the terms of this Agreement, in each case, which would reasonably be expected to result in a public announcement or public disclosure of such request or proposal; or
(oj) take other than in sale transactions on the NYSE or through a broker or dealer where the identity of the purchaser is not known, sell or agree to sell directly or indirectly, through swap or hedging transactions or otherwise, Common Stock or any derivatives relating to Common Stock to any third party that either (i) has filed a Schedule 13D with respect to the Company or (ii) has run (or publicly announced an intention to run) a proxy contest or consent solicitation with respect to another company in the past three years (but, in the case of this clause (ii), only if the Xxxxx Group knows, after reasonable inquiry, that the third party has, or will as a result of the transaction have, beneficial ownership of more than 5% of the Common Stock). The Xxxxx Group, jointly and severally, agrees to be responsible for any action challenging or omission by any of the validity or enforceability following that would constitute a breach of this AgreementAgreement if directly or indirectly taken or omitted by the Xxxxx Group: any consultants, agents, representatives, attorneys and advisors of the Xxxxx Group, to the extent such persons are directly or make or indirectly acting on behalf of the Xxxxx Group. The restrictions set forth above in this Section 3 shall not apply for the duration of any way advance any request or proposal period that the CompanyCompany is not in material compliance with its obligations under Section 2, FSFR, the Company Board Section 6 or the FSFR Board amend, modify or waive any provision Section 16 of this Agreement.
Appears in 2 contracts
Samples: Voting Agreement (Radix Partners LLC), Voting Agreement (Capital Senior Living Corp)
Standstill. Effective from (a) Each TPG Stockholder agrees that, until the earlier of the three (3) year anniversary of the date hereof or the date on which such TPG Stockholder does not Beneficially Own any shares of this Agreement and continuing until Company Common Stock, without the later prior written consent of at least a majority of the certification of votes for the Company 2017 Annual Meeting of Stockholders or the certification of votes for the FSFR (as defined below) 2017 Annual Meeting of Stockholders (the “Standstill Period”)Board, except to the extent expressly permitted by the terms of this Agreement, none of the Sellers shallsuch TPG Stockholder shall not, and Sellers shall cause their respective its controlled Affiliates not to, directly or indirectly, in any manner, alone or in concert with others:
(ai) solicitacquire, agree to acquire, propose or offer to acquire, or knowingly encourage or in any way engage in any solicitation facilitate the acquisition of, any proxies shares of Company Common Stock (other than acquisitions involving no more than three percent (3%) of the fully-diluted voting power of the shares of Company Common Stock in the aggregate), other than as a result of any stock split, stock dividend or consents subdivision of the shares of Company Common Stock or become in connection with any of the transactions contemplated by the Merger Agreement;
(ii) deposit any shares of Company Common Stock into a “participant” voting trust or similar contract or subject any shares of Company Common Stock to any voting agreement, pooling arrangement or similar arrangement or other contract, or grant any proxy with respect to any shares of Company Common Stock, in a each case, other than any such voting trust, voting agreement, pooling arrangement or other contract, solely among the TPG Stockholders;
(iii) other than in connection with any matter recommended by the Board, enter, agree to enter or propose or offer to enter into any merger, business combination, recapitalization, restructuring, change in control transaction or other similar extraordinary transaction involving the Company or any of its subsidiaries or an acquisition of 10% or more of the assets of the Company and its subsidiaries;
(iv) other than in connection with any matter recommended by the Board, make or participate or engage in (subject to Section 5.1(b)), any “solicitation,” directly or indirectly, of “proxies” (as such terms are defined in under Regulation 14A under the Securities Exchange Act of 1934, as amended (the “Exchange Act”) to vote any shares of Company Common Stock, disregarding clause (iv) of proxies or consents (including, without limitation, Rule 14a-1(l)(2) and including any otherwise exempt solicitation of consents that seeks pursuant to call a special meeting of stockholders or by encouraging or participating in any “withhold” or similar campaign), in each case, with respect to securities of the Company or Fifth Street Senior Floating Rate Corp. (“FSFR”) or any securities convertible or exchangeable into or exercisable for any such securities (collectively, “securities of the Companies”Rule 14a-2(b);
(bv) make publicly disclose any proposal for consideration by stockholders at any annual intention, plan, arrangement or special meeting of other contract prohibited by, or inconsistent with, the stockholders of the Company or FSFR, whether pursuant to Rule 14a-8 under the Exchange Act, either such company’s constituent documents or otherwiseforegoing;
(cvi) advise or knowingly advise, encourage, support, instruct assist or influence knowingly encourage or enter into any person negotiations or agreements or other contracts with any other persons in connection with the foregoing;
(vii) with respect to any of the matters covered by this Section 3.1 or with respect to the voting or disposition of any securities of the Companies at any annual or special meeting of stockholders of the Company or FSFRforegoing, except in accordance with Section 3.4, or seek to do so;
(d) agree, attempt, seek or propose to deposit any securities of the Companies in any voting trust or similar arrangement, or subject any securities of the Companies to any arrangement or agreement with respect to the voting thereof, except in accordance with Section 3.4;
(e) knowingly seek or encourage any person to submit nominations in furtherance of a “contested solicitation” or take other action for the election or removal of directors with respect to the Company or FSFR, including any action that is intended to, or is reasonably likely to result in, the replacement of the investment advisor of the Company or FSFR, or a modification to the terms or conditions of either the Company’s or FSFR’s investment advisory agreement;
(fA) form, join in or in any way participate in (subject to Section 5.1(b)) a partnership, limited partnership, syndicate or other “group, including, without limitation, a group as defined under ” (within the meaning of Section 13(d13(d)(3) of the Exchange Act (except such participation related to and the reasonable unwinding of any such group currently existing as of the date of this Agreementrules and regulations thereunder) with any person who is not identified on Schedule I hereto (any such person, a “Third Party”), with respect to any securities common stock; (B) call, or seek to call, a meeting of the Companies Stockholders of the Company or initiate any Stockholder proposal for action by Stockholders of the Company with respect to any of the foregoing or (C) directly or indirectly, take any other action that would interfere with reasonably be expected to require the ability Company to make a public announcement regarding the possibility of Sellers to vote a business combination, merger, sale of assets or other type of transaction or matter described in accordance with this AgreementSection 5.1;
(gviii) make present at any disclosure, communication, announcement annual meeting or statement regarding any intent, purpose, plan or proposal with respect to the FSC Board of Directors (the “Company Board”), the Company investment advisor or the terms and conditions special meeting of the Company’s investment advisory agreement, the FSFR Board of Directors (the “FSFR Board”), the FSFR investment advisor Stockholders or the terms and conditions of FSFR’s investment advisory agreement, the Company, FSFR, or the management, policies or affairs of either the Company or FSFR, or with respect to this Agreement, that is inconsistent with the provisions of this Agreement;
(h) effect or seek to effect, offer through action by written consent any proposal for consideration for action by Stockholders or propose any nominee for election to effect, cause or participate in, or in any way assist or facilitate any other person to effect or seek, offer or propose to effect or participate in, any tender or exchange offer, merger, consolidation, acquisition, scheme, arrangement, business combination, recapitalization, reorganization, sale or acquisition of assets, liquidation, dissolution, extraordinary dividend, significant share repurchase or other extraordinary transaction involving the Company, FSFR or either of their investment advisors, or any of their subsidiaries or joint ventures or any of their respective securities (each, an “Extraordinary Transaction”), or make any statement or disclosure regarding any intent, purpose, plan or proposal with respect to any Extraordinary Transaction or this Agreement that is inconsistent with the provisions of this Agreement, including any intent, purpose, plan or proposal that is conditioned on, or would require waiver, amendment, nullification or invalidation of, any provision of this Agreement or take any action that could require the Company or FSFR to make any public disclosure relating to any such intent, purpose, plan, proposal or condition;
(i) (i) call or seek to call or request the calling of any meeting of stockholders at either the Company or FSFR, including by written consent, (ii) seek, alone or in concert with others, representation on, or nominate any candidate to, the Company Board or the FSFR Board, (iii) seek the removal of any member of the Company Board or of Directors, in each case, subject to the FSFR Board, (iv) seek, alone or in concert with others, or support any Third Party in seeking, to replace the investment advisor rights of the Company or the investment advisor of FSFR, (v) solicit consents from the Company or FSFR stockholders or otherwise act or seek TPG Stockholders pursuant to act by written consent, (vi) conduct a referendum of the Company or FSFR stockholders or (vii) make a request for any stockholders list or any other books and records in Sellers’ capacity as a Company or FSFR stockholder;
(j) purchase or cause to be purchased or otherwise acquire or agree to acquire beneficial ownership of any securities issued by the Company or FSFR, or any securities convertible into or exchangeable for securities issued by the Company or FSFR;
(k) sell, offer to sell, give, pledge, grant a security interest in, encumber, assign, grant any option for the sale of or otherwise transfer or dispose of (each, a “Transfer”) any securities issued by the Company and/or any securities convertible into or exchangeable for securities issued by the Company, unless any Buyer fails to timely perform each of its obligations under Section 1.2(b), Section 1.3(c) and/or Section 1.3(d)(i) of this Agreement;
(l) institute, solicit or join, as a party, or knowingly assist any other person in instituting, soliciting or joining, any litigation, arbitration or other proceeding against the Company or FSFR or any of their current or former directors or officers (including derivative actions), other than (i) litigation to enforce the provisions of this Agreement and (ii) counterclaims with respect to any proceeding initiated by, or on behalf of, a party to this Agreement or FSFR against Sellers;
(m) enter into or engage in any short sale or purchase, sale or grant of any option, warrant, derivative, convertible security, stock appreciation right or other similar right (including, without limitation, any put or call option or swap transaction) with respect to or having any measurement relating to any securities of the Companies;
(n) enter into any negotiations, arrangements, understanding or agreements (whether written or oral) with, or advise, finance, assist, seek to knowingly persuade or encourage, any Third Party to take any action or make any statement in connection with any of the foregoing, or make any investment in or enter into any arrangement with any other person that engages, or offers or proposes to engage, in any of the foregoing, or otherwise take or cause any action or make any statement inconsistent with any of the foregoing2.2; or
(oix) take any action challenging the validity or enforceability of this Agreement, or make or in any way advance any request or proposal that the Company, FSFR, the Company Board or the FSFR Board amendany of its representatives, modify directly or indirectly, to amend or waive any provision of this Section 5.1; provided that the TPG Stockholders may confidentially request the Company to amend or waive any provision of this Section 5.1 in a manner that would not be reasonably likely to require public disclosure by the Company or such TPG Stockholders.
(b) Notwithstanding the foregoing provisions of this Section 5.1, the foregoing provisions shall not, and are not intended to:
(i) prohibit any TPG Stockholder or any of its controlled Affiliates from privately communicating with, including making any offer or proposal to, the Board;
(ii) restrict in any manner how any TPG Stockholder or any of its controlled Affiliates votes their shares of Company Common Stock;
(iii) restrict the manner in which any TPG Director may (A) vote on any matter submitted to the Board or the Stockholders of the Company, (B) participate in deliberations or discussions of the Board (including making suggestions or raising issues to the Board) in his or her capacity as a member of the Board or (C) take actions required by his or her exercise of legal duties and obligations as a member of the Board or refrain from taking any action prohibited by his or her legal duties and obligations as a member of the Board; or
(iv) restrict any TPG Stockholder or any of its Permitted Transferees from Transferring any Subject Shares to any Permitted Transferees of such TPG Stockholder or any successor of such TPG Stockholder that, in any such case, agrees to be bound by the provisions contained in this Agreement.
(c) Nothing set forth in this Section 5.1 shall prohibit, restrict or otherwise limit the ability of any TPG Stockholder or any Affiliate of any TPG Stockholder from engaging in any hedging and derivative transactions if such transactions are with one or more counterparties that are nationally recognized reputable banking organizations, solely to the extent such transactions do not have the intention or purpose of circumventing the transfer restrictions contained in this Agreement.
Appears in 2 contracts
Samples: Stockholder Rights Agreement (Assurant Inc), Stockholder Rights Agreement (Assurant Inc)
Standstill. Effective from Without the date of this Agreement and continuing until the later approval or written consent of the certification Board of votes for the Company 2017 Annual Meeting of Stockholders or the certification of votes for the FSFR (as defined below) 2017 Annual Meeting of Stockholders (the “Standstill Period”), except to the extent expressly permitted by the terms of this AgreementDirectors, none of the Sellers General Atlantic Stockholders or any of their Affiliates, and none of the Coinvestor Stockholders or any of their respective Affiliates shall, severally and Sellers not jointly, at any time prior to the Standstill Expiration Date:
(a) purchase or otherwise acquire, or propose or offer to purchase or acquire, any shares of the Company's capital stock, whether by tender offer, market purchase, privately negotiated purchase, merger or otherwise, any shares of the Company's capital stock or any Common Stock Equivalents in excess of the number of shares of the Company's capital stock and Common Stock Equivalents purchased pursuant to the Stock Purchase Agreement (subject to adjustments and issuances of additional Common Stock Equivalents pursuant to the Series D Preferred Stock Certificate of Designation) with respect to each such Stockholder and its Affiliates considered severally and not jointly with any other Stockholder and its Affiliates (the "Standstill Ceiling"); provided, however, that in no event shall cause their respective controlled any such Stockholder acquire any Shares in a transaction in such an amount that when aggregated with the shares of the Company's capital stock already owned by such Stockholder, the acquisition of such shares of the Company's capital stock would require stockholder approval under applicable Nasdaq rules and policies; and provided, further, that the dividends that accrue on the shares of Series D Preferred Stock pursuant to the terms thereof shall be excluded for purposes of calculating whether or not a Stockholder and its Affiliates not tohave exceeded the Standstill Ceiling;
(b) except as specified in this Agreement, make, or in any way participate, directly or indirectly, in any manner, alone or in concert with others:
"solicitation" of "proxy" (a) solicit, or knowingly encourage or in any way engage in any solicitation of, any proxies or consents or become a “participant” in a “solicitation,” directly or indirectly, as such terms are defined or used in Regulation 14A under of the Securities Exchange Act of 1934, as amended (the “Exchange Act”) of proxies to vote, or consents (including, without limitation, seek to advise or influence any solicitation of consents that seeks to call a special meeting of stockholders or by encouraging or participating in any “withhold” or similar campaign), in each case, Person with respect to securities the voting of, any shares of the Company Company's capital stock, or Fifth Street Senior Floating Rate Corp. become a "participant" in any "election contest" (“FSFR”) as such terms are used or any securities convertible or exchangeable into or exercisable for any such securities (collectively, “securities defined in Regulation 14A of the Companies”);
(b) make any proposal for consideration by stockholders at any annual or special meeting of the stockholders of the Company or FSFR, whether pursuant to Rule 14a-8 under the Exchange Act) relating to the election of directors of the Company; provided, either such company’s constituent documents however, that none of the General Atlantic Stockholders, the Coinvestor Stockholders or otherwiseany of their respective Affiliates shall be deemed to have engaged in a "solicitation" or to have become a "participant" by reason of the membership of designees of the General Atlantic Stockholders, the Coinvestor Stockholders or any of their respective Affiliates on the Board of Directors;
(c) knowingly advise, encourage, support, instruct or influence any person with respect to any of the matters covered by this Section 3.1 or with respect to the voting or disposition of any securities of the Companies at any annual or special meeting of stockholders of the Company or FSFR, except in accordance with Section 3.4, or seek to do so;
(d) agree, attempt, seek or propose to deposit any securities of the Companies in any voting trust or similar arrangement, or subject any securities of the Companies to any arrangement or agreement with respect to the voting thereof, except in accordance with Section 3.4;
(e) knowingly seek or encourage any person to submit nominations in furtherance of a “contested solicitation” or take other action for the election or removal of directors with respect to the Company or FSFR, including any action that is intended to, or is reasonably likely to result in, the replacement of the investment advisor of the Company or FSFR, or a modification to the terms or conditions of either the Company’s or FSFR’s investment advisory agreement;
(f) form, join in or in any way participate in a partnership"group" (within the meaning of Section 13(d)(3) of the Exchange Act) or otherwise act in concert with any Person for the purpose of acquiring, limited partnershipholding, syndicate voting or other groupdisposing of any shares of the Company's capital stock; provided, however, that (i) the General Atlantic Stockholders may act as a group for the purpose of acquiring, holding, voting or disposing of any shares of the Company's capital stock, (ii) Vectis CP Holdings, LLC and any Affiliate thereof that acquires shares of the Company's capital stock (the "Vectis Stockholders") may act as a group for the purpose of acquiring, holding, voting or disposing of any shares of the Company's capital stock and (iii) Cenwell Limited, Campina Enterprises Limited and any Affiliate thereof that acquires shares of the Company's capital stock (the "Cenwell Stockholders") may act as a group for the purpose of acquiring, holding, voting or disposing of any shares of the Company's capital stock; and provided further, that, for the avoidance of doubt, the General Atlantic Stockholders, the Vectis Stockholders and the Cenwell Stockholders may not together act as a group for all purpose of acquiring, holding, voting or disposing of any shares of the Company's capital stock; or
(d) request the Company (or its directors, officers, employees or agents), to take any action which would reasonably be expected to require pursuant to law the Company to make a public announcement or proposal or offer with respect to (i) any form of business combination or transaction involving the Company including, without limitation, a group as defined under Section 13(d) of the Exchange Act (except such participation related to the reasonable unwinding of any such group currently existing as of the date of this Agreement) with any person who is not identified on Schedule I hereto (any such personmerger, a “Third Party”)consolidation, with respect to any securities of the Companies or take any other action that would interfere with the ability of Sellers to vote in accordance with this Agreement;
(g) make any disclosure, communication, announcement or statement regarding any intent, purpose, plan or proposal with respect to the FSC Board of Directors (the “Company Board”), the Company investment advisor or the terms and conditions of the Company’s investment advisory agreement, the FSFR Board of Directors (the “FSFR Board”), the FSFR investment advisor or the terms and conditions of FSFR’s investment advisory agreement, the Company, FSFR, or the management, policies or affairs of either the Company or FSFR, or with respect to this Agreement, that is inconsistent with the provisions of this Agreement;
(h) effect or seek to effect, offer or propose to effect, cause or participate in, or in any way assist or facilitate any other person to effect or seek, offer or propose to effect or participate in, any tender or exchange offer, merger, consolidation, acquisition, scheme, arrangement, business combination, recapitalization, reorganization, sale or acquisition purchase of assets, liquidation, dissolution, extraordinary dividend, significant share repurchase or other extraordinary transaction involving the Company, FSFR dissolution or either of their investment advisors, or any of their subsidiaries or joint ventures or any of their respective securities (each, an “Extraordinary Transaction”), or make any statement or disclosure regarding any intent, purpose, plan or proposal with respect to any Extraordinary Transaction or this Agreement that is inconsistent with the provisions of this Agreement, including any intent, purpose, plan or proposal that is conditioned on, or would require waiver, amendment, nullification or invalidation of, any provision of this Agreement or take any action that could require the Company or FSFR to make any public disclosure relating to any such intent, purpose, plan, proposal or condition;
(i) (i) call or seek to call or request the calling of any meeting of stockholders at either the Company or FSFR, including by written consent, (ii) seek, alone or in concert with others, representation on, or nominate any candidate to, the Company Board or the FSFR Board, (iii) seek the removal of any member of the Company Board or the FSFR Board, (iv) seek, alone or in concert with others, or support any Third Party in seeking, to replace the investment advisor liquidation of the Company or the investment advisor of FSFR, (v) solicit consents from the Company or FSFR stockholders or otherwise act or seek to act by written consent, (vi) conduct a referendum of the Company or FSFR stockholders or (vii) make a request for any stockholders list or any other books and records in Sellers’ capacity as a Company or FSFR stockholder;
(j) purchase or cause to be purchased or otherwise acquire or agree to acquire beneficial ownership of any securities issued by the Company or FSFR, or any securities convertible into or exchangeable for securities issued by the Company or FSFR;
(k) sell, offer to sell, give, pledge, grant a security interest in, encumber, assign, grant any option for the sale of or otherwise transfer or dispose of (each, a “Transfer”) any securities issued by the Company and/or any securities convertible into or exchangeable for securities issued by the Company, unless any Buyer fails to timely perform each of its obligations under Section 1.2(b), Section 1.3(c) and/or Section 1.3(d)(i) of this Agreement;
(l) institute, solicit or join, as a party, or knowingly assist any other person in instituting, soliciting or joining, any litigation, arbitration or other proceeding against the Company or FSFR or any of their current or former directors or officers (including derivative actions), other than (i) litigation to enforce the provisions of this Agreement and (ii) counterclaims with respect instigate, encourage or assist any Person to any proceeding initiated by, or on behalf of, a party to this Agreement or FSFR against Sellers;
(m) enter into or engage in any short sale or purchase, sale or grant of any option, warrant, derivative, convertible security, stock appreciation right or other similar right (including, without limitation, any put or call option or swap transaction) with respect to or having any measurement relating to any securities of the Companies;
(n) enter into any negotiations, arrangements, understanding or agreements (whether written or oral) with, or advise, finance, assist, seek to knowingly persuade or encourage, any Third Party to take any action or make any statement in connection with do any of the foregoing, or make any investment in or enter into any arrangement with any other person that engages, or offers or proposes to engage, in any of the foregoing, or otherwise take or cause any action or make any statement inconsistent with any of the foregoing; or
(o) take any action challenging the validity or enforceability of this Agreement, or make or in any way advance any request or proposal that the Company, FSFR, the Company Board or the FSFR Board amend, modify or waive any provision of this Agreement.
Appears in 2 contracts
Samples: Stockholders Agreement (Vectis Cp Holdings LLC), Stockholders Agreement (Critical Path Inc)
Standstill. Effective from Unless terminated earlier pursuant to Section 2.2, during the date of this Agreement period (such period, the “Standstill Term”) commencing on the Closing Date and continuing until the later of (i) the certification first (1st) anniversary of votes for the Closing Date and (ii) the date that is thirty (30) calendar days following the date on which no Investor Designee is serving on the Board, the Investor, SKT and their Subsidiaries shall not do any of the following, except as approved, invited or waived in writing by the Company 2017 Annual Meeting or a majority of Stockholders or the certification of votes for Board (excluding the FSFR (as defined below) 2017 Annual Meeting of Stockholders (the “Standstill Period”Investor Designee, if any), except to the extent expressly permitted or as contemplated by the terms of this Agreement, none :
(a) other than purchases of the Sellers shall, and Sellers shall cause their respective controlled Affiliates not toParticipation Right Shares, directly or indirectly, acquire beneficial ownership of Company Ordinary Shares and/or Company Ordinary Share Equivalents and/or any instrument that gives the Investor the economic equivalent of ownership of an amount of Company Ordinary Shares, except that nothing in any manner, alone this Section 2.1(a) shall prevent or prohibit the Investor from investing in concert a fund with others:respect to which the Investor does not have or share decision-making authority over investment or divestment decisions;
(ab) solicitmake a tender offer, exchange offer or other offer to the public to acquire Company Ordinary Shares and/or Company Ordinary Share Equivalents;
(c) (i) seek to have called any meeting of the shareholders of the Company or propose any matter to be voted upon by the shareholders of the Company, or knowingly (ii) propose or nominate for election or appointment to the Board a person other than the Investor Designee whose nomination has not been approved by a majority of the Board (excluding the Investor Designee, if any);
(d) encourage or support a tender offer, exchange offer or other offer to the public by any Third Party for Company Ordinary Shares and/or Company Ordinary Share Equivalents (if such offer or proposal would, if consummated, result in any way engage in any solicitation ofa Change of Control of the Company, any such offer or proposal is referred to as an “Acquisition Proposal”);
(e) solicit proxies or consents or become a “participant” participant in a “solicitation,” directly or indirectly, (as such terms are defined in Regulation 14A under the Securities Exchange Act of 1934, as amended (the “Exchange Act”) of proxies or consents (including, without limitation, any solicitation of consents that seeks to call a special meeting of stockholders or by encouraging or participating in any “withhold” or similar campaign), in each case, with respect to securities voting of Company Ordinary Shares, other than a solicitation made by the Company or Fifth Street Senior Floating Rate Corp. (“FSFR”) or any securities convertible or exchangeable into or exercisable for any such securities (collectively, “securities the majority of the Companies”Board (excluding the Investor Designee, if any);
(bf) make any proposal for consideration by stockholders at any annual or special meeting of the stockholders of the Company or FSFR, whether pursuant to Rule 14a-8 under the Exchange Act, either such company’s constituent documents or otherwise;
(c) knowingly advise, encourage, support, instruct or influence any person with respect to any of the matters covered by this Section 3.1 or with respect to the voting or disposition of any securities of the Companies at any annual or special meeting of stockholders of the Company or FSFR, except in accordance with Section 3.4, or seek to do so;
(d) agree, attempt, seek or propose to deposit any securities of the Companies Company Ordinary Shares and/or Company Ordinary Share Equivalents in any a voting trust or similar arrangement, or subject any such securities of the Companies to any arrangement or agreement with respect to the voting thereofof such securities, except in accordance with Section 3.4including the granting of any proxy (other than a proxy solicited by the Company or the majority of the Board (excluding the Investor Designee, if any));
(eg) knowingly seek without the prior written consent of the Company or encourage the majority of the Board (excluding the Investor Designee, if any) (i) publicly propose (x) any person to submit nominations in furtherance merger, consolidation, business combination, tender or exchange offer, purchase of a “contested solicitation” the Company’s assets or take businesses, or (y) any recapitalization, restructuring, liquidation or other action for the election or removal of directors extraordinary transaction with respect to the Company (a transaction described in clauses (x) and (y) that would result in a Change of Control, is referred to as a “Business Combination”) or FSFR, including (ii) take any action with respect to a potential Business Combination prior to the approval of such potential Business Combination by a majority of the Board (excluding the Investor Designee, if any) that is intended towould reasonably be expected to require the Company to make a public announcement regarding such potential Business Combination; or
(h) act in concert with any Third Party to take any action, or is reasonably likely to result inmake any public announcement regarding any action, the replacement of the investment advisor of the Company set forth in clauses (a) through (g) above, or, directly or FSFRindirectly, or a modification to the terms or conditions of either the Company’s or FSFR’s investment advisory agreement;
(f) form, join in or in any way participate in a partnership, limited partnership, syndicate or other “group, including, without limitation, a group ” (as such term is defined under in Section 13(d13d(3) of the Exchange Act (except such participation related to the reasonable unwinding of any such group currently existing as of the date of this AgreementAct) with any person who is not identified on Schedule I hereto (any such person, a “Third Party”), with respect to any securities of the Companies or take any other action that would interfere with the ability of Sellers to vote in accordance with this Agreement;
(g) make any disclosure, communication, announcement or statement regarding any intent, purpose, plan or proposal with respect to the FSC Board of Directors (the “Company Board”), the Company investment advisor or the terms and conditions of the Company’s investment advisory agreement, the FSFR Board of Directors (the “FSFR Board”), the FSFR investment advisor or the terms and conditions of FSFR’s investment advisory agreement, the Company, FSFR, or the management, policies or affairs of either the Company or FSFR, or with respect to this Agreement, that is inconsistent with the provisions of this Agreement;
(h) effect or seek to effect, offer or propose to effect, cause or participate in, or in any way assist or facilitate any other person to effect or seek, offer or propose to effect or participate in, any tender or exchange offer, merger, consolidation, acquisition, scheme, arrangement, business combination, recapitalization, reorganization, sale or acquisition of assets, liquidation, dissolution, extraordinary dividend, significant share repurchase or other extraordinary transaction involving the Company, FSFR or either of their investment advisors, or any of their subsidiaries or joint ventures or any of their respective securities (each, an “Extraordinary Transaction”), or make any statement or disclosure regarding any intent, purpose, plan or proposal with respect to any Extraordinary Transaction or this Agreement that is inconsistent with the provisions of this Agreement, including any intent, purpose, plan or proposal that is conditioned on, or would require waiver, amendment, nullification or invalidation of, any provision of this Agreement or take any action that could require the Company or FSFR to make any public disclosure relating to any such intent, purpose, plan, proposal or condition;
(i) (i) call or seek to call or request the calling of any meeting of stockholders at either the Company or FSFR, including by written consent, (ii) seek, alone or in concert with others, representation on, or nominate any candidate to, the Company Board or the FSFR Board, (iii) seek the removal of any member of the Company Board or the FSFR Board, (iv) seek, alone or in concert with others, or support any Third Party in seeking, to replace the investment advisor of the Company or the investment advisor of FSFR, (v) solicit consents from the Company or FSFR stockholders or otherwise act or seek to act by written consent, (vi) conduct a referendum of the Company or FSFR stockholders or (vii) make a request for any stockholders list or any other books and records in Sellers’ capacity as a Company or FSFR stockholder;
(j) purchase or cause to be purchased or otherwise acquire or agree to acquire beneficial ownership of any securities issued by the Company or FSFR, or any securities convertible into or exchangeable for securities issued by the Company or FSFR;
(k) sell, offer to sell, give, pledge, grant a security interest in, encumber, assign, grant any option for the sale of or otherwise transfer or dispose of (each, a “Transfer”) any securities issued by the Company and/or any securities convertible into or exchangeable for securities issued by the Company, unless any Buyer fails to timely perform each of its obligations under Section 1.2(b), Section 1.3(c) and/or Section 1.3(d)(i) of this Agreement;
(l) institute, solicit or join, as a party, or knowingly assist any other person in instituting, soliciting or joining, any litigation, arbitration or other proceeding against the Company or FSFR or any of their current or former directors or officers (including derivative actions), other than (i) litigation to enforce the provisions of this Agreement and (ii) counterclaims with respect to any proceeding initiated by, or on behalf of, a party to this Agreement or FSFR against Sellers;
(m) enter into or engage in any short sale or purchase, sale or grant of any option, warrant, derivative, convertible security, stock appreciation right or other similar right (including, without limitation, any put or call option or swap transaction) with respect to or having any measurement relating to any securities of the Companies;
(n) enter into any negotiations, arrangements, understanding or agreements (whether written or oral) with, or advise, finance, assist, seek to knowingly persuade or encourage, any Third Party to take any action in clauses (a) through (g) above; provided, however, that nothing contained in this Section 2.1 shall prevent, restrict, encumber, or make limit in any statement in connection with manner: (A) the Investor or any of its Affiliates from making confidential, nonpublic proposals to the foregoingBoard for a transaction involving a Business Combination or Acquisition Proposal, the discussions of which would not reasonably be expected to require a public disclosure; (B) the Investor Designee from performing its duties as a member of the Board; (C) the Investor or make any investment in of its Affiliates from exercising their respective rights, performing their respective obligations or enter into any arrangement with any other person that engages, otherwise consummating the transactions contemplated by this Agreement or offers or proposes to engagethe Purchase Agreement, in any of each case, in accordance with the foregoingterms hereof and thereof; or (D) nonpublic discussions or communications among the Investor, or otherwise take or cause any action or make any statement inconsistent with any of the foregoing; or
(o) take any action challenging the validity or enforceability of this Agreement, or make or in any way advance any request or proposal that the Company, FSFR, the Company Board or the FSFR Board amend, modify or waive any provision of this Agreementits Affiliates and their counsel and other Representatives.
Appears in 2 contracts
Samples: Investor Agreement (Penguin Solutions, Inc.), Securities Purchase Agreement (SMART Global Holdings, Inc.)
Standstill. Effective from the date of this Agreement (a) Investor Standstill. Subject to Section 4.03(b) through Section 4.03(d), each Investor covenants and continuing until the later of the certification of votes for agrees with the Company 2017 Annual Meeting of Stockholders or the certification of votes for the FSFR (as defined below) 2017 Annual Meeting of Stockholders (the “Standstill Period”)that, except to the extent expressly permitted by the terms of this Agreement, none of the Sellers shallsuch Investor shall not, and Sellers shall cause their respective controlled its Affiliates not to, directly or indirectly, in any manner, alone or in concert with others, without the prior written consent of the Company, take any of the actions set forth in clauses (i) through (iv) below (clauses (i) through (iv) below, collectively, the “Investors Standstill”) :
(ai) solicitin any way acquire, offer or propose to acquire or agree to acquire legal title to or beneficial ownership of any Company Securities to the extent the Ownership Percentage of such Investor will exceed its Ownership Cap as a result of such acquisition;
(ii) make any public announcement with respect to, or knowingly encourage submit to the Company or any of its directors, officers, representatives, trustees, employees, attorneys, advisors, agents or Affiliates, any proposal for the acquisition of a majority of the Company Securities (including through tender offer, merger, consolidation, restructuring or recapitalization of the Company) if the submission of such proposal will require the making of a public announcement by the Company unless the Company shall have made a prior written request to such Investor to submit such a proposal;
(iii) seek or propose to influence, advise, change or control the management, the board of directors of the Company, governing instruments or policies or affairs of the Company by way of any public communication, or make, or in any way engage participate in, any “solicitation” of “proxies” (as such terms are defined or used in Regulation 14A under the Exchange Act) to vote, or seek to advise or influence any solicitation Person with respect to the voting of, any proxies or consents Company Securities or become a “participant” in a any “solicitation,election contest” directly or indirectly, as such terms are defined and used in Regulation 14A) with respect to Company Securities; provided, however, that nothing in this clause (iii) shall prevent such Investor or its Affiliates from (x) voting in any manner any Company Securities over which such Investor or such Affiliates has Beneficial Ownership or (y) communicating privately with shareholders of the Company to the extent such communication does not constitute a “solicitation” of “proxies,” as such terms are defined or used in Regulation 14A under the Securities Exchange Act and the number of 1934, as amended persons with whom such Investor communicates is fewer than ten (the “Exchange Act”) of proxies or consents (including, without limitation, any solicitation of consents that seeks to call a special meeting of stockholders or by encouraging or participating in any “withhold” or similar campaign10), in each case, with respect to securities of the Company or Fifth Street Senior Floating Rate Corp. (“FSFR”) or any securities convertible or exchangeable into or exercisable for any such securities (collectively, “securities of the Companies”);; or
(b) make any proposal for consideration by stockholders at any annual or special meeting of the stockholders of the Company or FSFR, whether pursuant to Rule 14a-8 under the Exchange Act, either such company’s constituent documents or otherwise;
(c) knowingly advise, encourage, support, instruct or influence any person with respect to any of the matters covered by this Section 3.1 or with respect to the voting or disposition of any securities of the Companies at any annual or special meeting of stockholders of the Company or FSFR, except in accordance with Section 3.4, or seek to do so;
(d) agree, attempt, seek or propose to deposit any securities of the Companies in any voting trust or similar arrangement, or subject any securities of the Companies to any arrangement or agreement with respect to the voting thereof, except in accordance with Section 3.4;
(e) knowingly seek or encourage any person to submit nominations in furtherance of a “contested solicitation” or take other action for the election or removal of directors with respect to the Company or FSFR, including any action that is intended to, or is reasonably likely to result in, the replacement of the investment advisor of the Company or FSFR, or a modification to the terms or conditions of either the Company’s or FSFR’s investment advisory agreement;
(fiv) form, join in or in any way participate in a partnership, limited partnership, syndicate or other “group, including, without limitation, a group ” (as defined under in Section 13(d13(d)(3) of the Exchange Act (except such participation related to the reasonable unwinding of Act) in connection with any such group currently existing as action contemplated by any of the date of this Agreementforegoing;
(v) enter into any negotiations or arrangements with any person who is not identified on Schedule I hereto (third party, or finance any such person, a “Third Party”)third party, with respect to any securities of the Companies or take any other action that would interfere with the ability of Sellers to vote in accordance with this Agreement;
(g) make any disclosure, communication, announcement or statement regarding any intent, purpose, plan or proposal with respect to the FSC Board of Directors (the “Company Board”), the Company investment advisor or the terms and conditions of the Company’s investment advisory agreement, the FSFR Board of Directors (the “FSFR Board”), the FSFR investment advisor or the terms and conditions of FSFR’s investment advisory agreement, the Company, FSFR, or the management, policies or affairs of either the Company or FSFR, or with respect to this Agreement, that is inconsistent with the provisions of this Agreement;
(h) effect or seek to effect, offer or propose to effect, cause or participate in, or in any way assist or facilitate any other person to effect or seek, offer or propose to effect or participate in, any tender or exchange offer, merger, consolidation, acquisition, scheme, arrangement, business combination, recapitalization, reorganization, sale or acquisition of assets, liquidation, dissolution, extraordinary dividend, significant share repurchase or other extraordinary transaction involving the Company, FSFR or either of their investment advisors, or any of their subsidiaries or joint ventures or any of their respective securities (each, an “Extraordinary Transaction”), or make any statement or disclosure regarding any intent, purpose, plan or proposal with respect to any Extraordinary Transaction or this Agreement that is inconsistent with the provisions of this Agreement, including any intent, purpose, plan or proposal that is conditioned on, or would require waiver, amendment, nullification or invalidation of, any provision of this Agreement or take any action that could require the Company or FSFR to make any public disclosure relating to any such intent, purpose, plan, proposal or condition;
(i) (i) call or seek to call or request the calling of any meeting of stockholders at either the Company or FSFR, including by written consent, (ii) seek, alone or in concert with others, representation on, or nominate any candidate to, the Company Board or the FSFR Board, (iii) seek the removal of any member of the Company Board or the FSFR Board, (iv) seek, alone or in concert with others, or support any Third Party in seeking, to replace the investment advisor of the Company or the investment advisor of FSFR, (v) solicit consents from the Company or FSFR stockholders or otherwise act or seek to act by written consent, (vi) conduct a referendum of the Company or FSFR stockholders or (vii) make a request for any stockholders list or any other books and records in Sellers’ capacity as a Company or FSFR stockholder;
(j) purchase or cause to be purchased or otherwise acquire or agree to acquire beneficial ownership of any securities issued by the Company or FSFR, or any securities convertible into or exchangeable for securities issued by the Company or FSFR;
(k) sell, offer to sell, give, pledge, grant a security interest in, encumber, assign, grant any option for the sale of or otherwise transfer or dispose of (each, a “Transfer”) any securities issued by the Company and/or any securities convertible into or exchangeable for securities issued by the Company, unless any Buyer fails to timely perform each of its obligations under Section 1.2(b), Section 1.3(c) and/or Section 1.3(d)(i) of this Agreement;
(l) institute, solicit or join, as a party, or knowingly assist any other person in instituting, soliciting or joining, any litigation, arbitration or other proceeding against the Company or FSFR or any of their current or former directors or officers (including derivative actions), other than (i) litigation to enforce the provisions of this Agreement and (ii) counterclaims with respect to any proceeding initiated by, or on behalf of, a party to this Agreement or FSFR against Sellers;
(m) enter into or engage in any short sale or purchase, sale or grant of any option, warrant, derivative, convertible security, stock appreciation right or other similar right (including, without limitation, any put or call option or swap transaction) with respect to or having any measurement relating to any securities of the Companies;
(n) enter into any negotiations, arrangements, understanding or agreements (whether written or oral) with, or advise, finance, assist, seek to knowingly persuade or encourage, any Third Party to take any action or make any statement in connection with any of the foregoing, or make any investment in or enter into any arrangement with any other person that engages, or offers or proposes to engage, in any of the foregoing, or otherwise take or cause any action or make any statement inconsistent with any of the foregoing; or
(ovi) make any public disclosure inconsistent with clauses (i) through (v), or knowingly take any action challenging with the validity or enforceability intent of this Agreement, or make or in any way advance any request or proposal that the Company, FSFR, requiring the Company Board or to make any public disclosure with respect to the FSFR Board amend, modify matters set forth in clauses (i) through (v).
(vii) make a request to amend or waive any provision of this AgreementSection 4.03.
Appears in 2 contracts
Samples: Investor Rights Agreement (JD.com, Inc.), Investor Rights Agreement (Vipshop Holdings LTD)
Standstill. Effective 4.3.1 Quest Diagnostics agrees that, for a period of four (4) years from the date of this Agreement and continuing until the later of the certification of votes for the Company 2017 Annual Meeting of Stockholders or the certification of votes for the FSFR (as defined below) 2017 Annual Meeting of Stockholders (the “Standstill Period”)Closing Date, except unless specifically invited in writing to the extent expressly permitted do so by the terms Board of this AgreementDirectors of TriPath, none of the Sellers shall, and Sellers shall cause their respective controlled Affiliates not toneither Quest Diagnostics nor any its affiliates will, directly or indirectly, in any manner, alone or in concert with others:
(ai) solicitacquire, offer, seek, propose or knowingly encourage agree to acquire by purchase or in any way engage in any solicitation ofotherwise, any proxies or consents or become a “participant” in a “solicitation,” directly or indirectly, as such terms are defined in Regulation 14A under the Securities Exchange Act of 1934, as amended (the “Exchange Act”) of proxies or consents (including, without limitation, any solicitation of consents that seeks to call a special meeting of stockholders individually or by encouraging or participating in any “withhold” or similar campaign), in each case, with respect to securities of the Company or Fifth Street Senior Floating Rate Corp. (“FSFR”) or any securities convertible or exchangeable into or exercisable for any such securities (collectively, “securities of the Companies”);
(b) make any proposal for consideration by stockholders at any annual or special meeting of the stockholders of the Company or FSFR, whether pursuant to Rule 14a-8 under the Exchange Act, either such company’s constituent documents or otherwise;
(c) knowingly advise, encourage, support, instruct or influence any person with respect to any of the matters covered by this Section 3.1 or with respect to the voting or disposition of any securities of the Companies at any annual or special meeting of stockholders of the Company or FSFR, except in accordance with Section 3.4, or seek to do so;
(d) agree, attempt, seek or propose to deposit any securities of the Companies in any voting trust or similar arrangement, or subject any securities of the Companies to any arrangement or agreement with respect to the voting thereof, except in accordance with Section 3.4;
(e) knowingly seek or encourage any person to submit nominations in furtherance of a “contested solicitation” or take other action for the election or removal of directors with respect to the Company or FSFR, including any action that is intended to, or is reasonably likely to result in, the replacement of the investment advisor of the Company or FSFR, or a modification to the terms or conditions of either the Company’s or FSFR’s investment advisory agreement;
(f) form, join in or in any way participate in joining a partnership, limited partnership, syndicate or other "group, including, without limitation, a group " (as defined under such term is used in Section 13(d13(d)(3) of the Exchange Act (except such participation related to the reasonable unwinding of any such group currently existing as of the date of this AgreementAct) with any person who is not identified on Schedule I hereto (any such personact, a “Third Party”to "acquire"), any (i) assets or businesses of TriPath or (ii) securities of TriPath entitled to vote, or securities convertible into or exercisable or exchangeable or redeemable for such securities (collectively, "Voting Securities");
(ii) form, join, participate in or encourage the formation of a partnership, limited partnership, syndicate or other group for the purpose of acquiring, holding or disposing of assets or businesses of TriPath or Voting Securities;
(iii) make, or in any way participate in, directly or indirectly, any "solicitation" of "proxies" (as such terms are defined or used in Regulation 14A under the Exchange Act) or become a "participant" in any "election contest" (as such terms are defined or used in Rule 14a-11 under the Exchange Act) with respect to TriPath, or initiate, propose or otherwise solicit stockholders of TriPath for the approval of one or more stockholder proposals with respect to TriPath or induce or attempt to induce any other person to initiate any stockholder proposal;
(iv) act, directly or indirectly, alone or in concert with others, to seek to control the management, Board of Directors, policies or affairs of TriPath, or solicit, propose, seek to effect or negotiate with any other person with respect to any securities form of the Companies business combination transaction involving, directly or take indirectly, TriPath or any other action that would interfere of its subsidiaries, or any restructuring, recapitalization or similar transaction with the ability of Sellers respect to vote in accordance with this Agreement;
(g) make any disclosureTriPath, communication, announcement or statement regarding any announce or disclose an intent, purpose, plan or proposal with respect to the FSC Board of Directors (the “Company Board”), the Company investment advisor TriPath or the terms and conditions of the Company’s investment advisory agreement, the FSFR Board of Directors (the “FSFR Board”), the FSFR investment advisor or the terms and conditions of FSFR’s investment advisory agreement, the Company, FSFR, or the management, policies or affairs of either the Company or FSFR, or with respect to this Agreement, that is any Voting Securities inconsistent with the provisions of this AgreementSection 4.3;
(hv) effect or seek to effect, offer or propose to effect, cause or participate inencourage any person, or directly or indirectly participate, aid and abet or otherwise induce any person or engage in any way assist of the actions prohibited by this Section 4.3 or facilitate to engage in any other person to effect actions consistent with such prohibitions;
(vi) enter into any discussions, negotiations, arrangements or seek, offer or propose to effect or participate in, understandings with any tender or exchange offer, merger, consolidation, acquisition, scheme, arrangement, business combination, recapitalization, reorganization, sale or acquisition of assets, liquidation, dissolution, extraordinary dividend, significant share repurchase or other extraordinary transaction involving the Company, FSFR or either of their investment advisors, or any of their subsidiaries or joint ventures or any of their respective securities (each, an “Extraordinary Transaction”), or make any statement or disclosure regarding any intent, purpose, plan or proposal third party with respect to any Extraordinary Transaction of the foregoing;
(vii) other than pursuant to the Collaboration Agreement or this the Product Purchase Agreement that is inconsistent with the provisions or Section 4.1 of this Agreement, including any intent, purpose, plan or proposal that is conditioned on, or would require waiver, amendment, nullification or invalidation of, any provision of this Agreement or take any action that could actions reasonably likely to require the Company or FSFR TriPath to make any public disclosure relating to any regarding such intent, purpose, plan, proposal or conditionmatters;
(i) (i) call or seek to call or request the calling of any meeting of stockholders at either the Company or FSFR, including by written consent, (ii) seek, alone or in concert with others, representation on, or nominate any candidate to, the Company Board or the FSFR Board, (iii) seek the removal of any member of the Company Board or the FSFR Board, (iv) seek, alone or in concert with others, or support any Third Party in seeking, to replace the investment advisor of the Company or the investment advisor of FSFR, (v) solicit consents from the Company or FSFR stockholders or otherwise act or seek to act by written consent, (vi) conduct a referendum of the Company or FSFR stockholders or (viiviii) make a request for any stockholders list or any other books and records in Sellers’ capacity as a Company or FSFR stockholder;
(j) purchase or cause to be purchased or otherwise acquire or agree to acquire beneficial ownership of any securities issued by the Company or FSFR, or any securities convertible into or exchangeable for securities issued by the Company or FSFR;
(k) sell, offer to sell, give, pledge, grant a security interest in, encumber, assign, grant any option for the sale of or otherwise transfer or dispose of (each, a “Transfer”) any securities issued by the Company and/or any securities convertible into or exchangeable for securities issued by the Company, unless any Buyer fails to timely perform each of its obligations under Section 1.2(b), Section 1.3(c) and/or Section 1.3(d)(i) of this Agreement;
(l) institute, solicit or join, as a party, or knowingly assist any other person in instituting, soliciting or joining, any litigation, arbitration or other proceeding against the Company or FSFR or any of their current or former directors or officers (including derivative actions), other than (i) litigation to enforce the provisions of this Agreement and (ii) counterclaims with respect to any proceeding initiated by, or on behalf of, a party to this Agreement or FSFR against Sellers;
(m) enter into or engage in any short sale or purchase, sale or grant of any option, warrant, derivative, convertible security, stock appreciation right or other similar right (including, without limitation, any put or call option or swap transaction) with respect to or having any measurement relating to any securities of the Companies;
(n) enter into any negotiations, arrangements, understanding or agreements (whether written or oral) with, or advise, finance, assist, seek to knowingly persuade or encourage, any Third Party to take any action or make any statement in connection with any of the foregoing, or make any investment in or enter into any arrangement with any other person that engages, or offers or proposes to engage, in any of the foregoing, or otherwise take or cause any action or make any statement inconsistent with any of the foregoing; or
(o) take any action challenging the validity or enforceability of this Agreement, or make or in any way advance any request or proposal that the Company, FSFR, the Company Board or the FSFR Board amend, modify to amend or waive any provision of this AgreementSection 4.3; or
(ix) disclose any intention, plan or arrangement inconsistent with the foregoing.
4.3.2 For purposes of this Section 4.3, the invitation of TriPath's Board of Directors shall be with the approval of a majority of those individuals who are either: (a) members of TriPath's Board of Directors as of the date hereof (the "Current Directors"); or (b) new members elected after the date hereof by a majority of the Current Directors and any new members previously elected pursuant to this clause (b). The term "affiliate" as used in this Agreement shall have the meaning ascribed to such term in Rule 12b-2 under the Exchange Act, but shall not include directors or officers of Quest Diagnostics acting in their individual capacities.
Appears in 2 contracts
Samples: Warrant Purchase Agreement (Tripath Imaging Inc), Warrant Purchase Agreement (Tripath Imaging Inc)
Standstill. Effective from From the date of this Agreement and continuing until the later of the certification of votes for the Company 2017 Annual Meeting of Stockholders or the certification of votes for the FSFR Expiration Date (as defined below) 2017 Annual Meeting of Stockholders (such period, the “Standstill Restricted Period”), except to the extent expressly permitted by the terms of this Agreement, none of the Sellers shallInvestors will not, and Sellers shall will cause their respective controlled Affiliates principals, directors, general partners, officers, employees, and agents and representatives acting on their behalf (collectively, the “Restricted Persons”) not to, directly or indirectly, in any manner, alone absent prior express written invitation or in concert with othersauthorization by the Company or the Board:
(a) solicit, or knowingly encourage or in any way engage in any solicitation of, any proxies or consents or become a “participant” in a “solicitation,” directly or indirectly, (as such terms are term is defined in Regulation 14A under the Securities Exchange Act of 1934, as amended (the “Exchange Act”)) of proxies or consents (including, without limitation, any solicitation of consents that seeks to call a special meeting of stockholders or by encouraging or participating in any “withhold” or similar campaign), in each case, with respect to securities of the Company or Fifth Street Senior Floating Rate Corp. (“FSFR”) or any securities convertible or exchangeable into or exercisable for any such securities (collectively, “securities of the Companies”);
(b) make any proposal for consideration by stockholders at any annual or special meeting of the stockholders of the Company or FSFR, whether pursuant to Rule 14a-8 under the Exchange Act, either such company’s constituent documents or otherwise;
(c) knowingly advise, encourage, support, instruct or influence any person with respect to any of the matters covered by this Section 3.1 or with respect to the voting or disposition of any securities of the Companies at any annual or special meeting of stockholders of the Company or FSFR, except in accordance with Section 3.4, or seek to do so;
(d) agree, attempt, seek or propose to deposit any securities of the Companies in any voting trust or similar arrangement, or subject any securities of the Companies to any arrangement or agreement with respect to the voting thereof, except in accordance with Section 3.4;
(e) knowingly seek or encourage any person to submit nominations in furtherance of a “contested solicitation” or take other action for the election or removal of directors or any other matter or proposal or become a “participant” (as such term is defined in Instruction 3 to Item 4 of Schedule 14A promulgated under the Exchange Act) in any such solicitation of proxies or consents;
(b) knowingly encourage, advise or influence any other Person or knowingly assist any Person in so encouraging, advising or influencing any Person with respect to the Company giving or FSFRwithholding of any proxy, including consent or other authority to vote or in conducting any action type of referendum, binding or non-binding, (other than such encouragement, advice or influence that is intended to, or is reasonably likely to result in, the replacement of the investment advisor of the consistent with Company or FSFR, or a modification to the terms or conditions of either the Companymanagement’s or FSFR’s investment advisory agreementrecommendation in connection with such matter);
(fc) form, join or act in or in concert with any way participate in a partnership, limited partnership, syndicate or other group, including, without limitation, including a group “group” as defined under pursuant to Section 13(d) of the Exchange Act (except such participation related to the reasonable unwinding of any such group currently existing as of the date of this Agreement) with any person who is not identified on Schedule I hereto (any such person, a “Third Party”), with respect to any securities of the Companies Voting Securities, other than solely with another Investor with respect to Voting Securities now or take any other action that would interfere with the ability of Sellers to vote in accordance with this Agreementhereafter owned by them;
(g) make any disclosure, communication, announcement or statement regarding any intent, purpose, plan or proposal with respect to the FSC Board of Directors (the “Company Board”), the Company investment advisor or the terms and conditions of the Company’s investment advisory agreement, the FSFR Board of Directors (the “FSFR Board”), the FSFR investment advisor or the terms and conditions of FSFR’s investment advisory agreement, the Company, FSFR, or the management, policies or affairs of either the Company or FSFR, or with respect to this Agreement, that is inconsistent with the provisions of this Agreement;
(h) effect or seek to effect, offer or propose to effect, cause or participate in, or in any way assist or facilitate any other person to effect or seek, offer or propose to effect or participate in, any tender or exchange offer, merger, consolidation, acquisition, scheme, arrangement, business combination, recapitalization, reorganization, sale or acquisition of assets, liquidation, dissolution, extraordinary dividend, significant share repurchase or other extraordinary transaction involving the Company, FSFR or either of their investment advisors, or any of their subsidiaries or joint ventures or any of their respective securities (each, an “Extraordinary Transaction”), or make any statement or disclosure regarding any intent, purpose, plan or proposal with respect to any Extraordinary Transaction or this Agreement that is inconsistent with the provisions of this Agreement, including any intent, purpose, plan or proposal that is conditioned on, or would require waiver, amendment, nullification or invalidation of, any provision of this Agreement or take any action that could require the Company or FSFR to make any public disclosure relating to any such intent, purpose, plan, proposal or condition;
(id) (i) call seek, alone or seek in concert with others, election or appointment to, or representation on, the Board or nominate or propose the nomination of, or recommend the nomination of, any candidate to call or request the calling of any meeting of stockholders at either the Company or FSFRBoard, including by written consentexcept as set forth herein, (ii) seek, alone or in concert with others, representation on, or nominate any candidate to, the Company Board or the FSFR Board, (iii) seek the removal of any member of the Company Board or the FSFR Board, (iv) seek, alone or in concert with others, or support any Third Party in seeking, to replace the investment advisor of the Company or the investment advisor of FSFR, (v) solicit consents from the Company or FSFR stockholders or otherwise act or seek to act by written consent, (viiii) conduct a referendum of the Company or FSFR stockholders or (vii) make a request for any stockholders list or any other books and records in Sellers’ capacity as a Company or FSFR stockholderstockholders;
(je) purchase make or cause to be purchased or otherwise acquire or agree to acquire beneficial ownership the proponent of any securities issued by stockholder proposal (pursuant to Rule 14a-8 under the Company Exchange Act or FSFR, or any securities convertible into or exchangeable for securities issued by the Company or FSFRotherwise);
(kf) sellexcept as set forth herein, offer make any public proposal with respect to sell, give, pledge, grant a security interest in, encumber, assign, grant any option for the sale of or otherwise transfer or dispose of (each, a “Transfer”i) any securities issued by change in the Company and/or number or term of directors or the filling of any securities convertible into vacancies on the Board, (ii) any material change in the capitalization or exchangeable for securities issued by dividend policy of the Company, unless (iii) any Buyer fails other material change in the Company’s management, business or corporate structure, (iv) any waiver, amendment or modification to timely perform each the Company’s Certificate of its obligations under Incorporation or Bylaws, (v) causing a class of securities of the Company to be delisted from, or to cease to be authorized to be quoted on, any securities exchange or (vi) causing a class of equity securities of the Company to become eligible for termination of registration pursuant to Section 1.2(b), Section 1.3(c) and/or Section 1.3(d)(i12(g)(4) of this Agreementthe Exchange Act;
(lg) institute, solicit solicit, assist or join, as a party, or knowingly assist any other person in instituting, soliciting or joining, join any litigation, arbitration or other proceeding against or involving the Company or FSFR or any of their its current or former directors or officers (including derivative actions)) in order to effect or take any of the actions expressly prohibited by this paragraph 6; provided, other than however, that for the avoidance of doubt the foregoing shall not prevent any Restricted Person from (i) bringing litigation to enforce the provisions of this Agreement and Agreement, (ii) making counterclaims with respect to any proceeding initiated by, or on behalf of, the Company against a party Restricted Person, (iii) bringing bona fide commercial disputes that do not relate to the subject matter of this Agreement Agreement, or FSFR against Sellers(iv) exercising statutory appraisal rights; provided, further, that the foregoing shall also not prevent the Restricted Persons from responding to or complying with a validly issued legal process;
(m) enter into or engage in any short sale or purchase, sale or grant of any option, warrant, derivative, convertible security, stock appreciation right or other similar right (including, without limitation, any put or call option or swap transaction) with respect to or having any measurement relating to any securities of the Companies;
(nh) enter into any negotiations, arrangements, understanding agreements or agreements (whether written or oral) withunderstandings with any Third Party, or advise, finance, assist, seek to knowingly persuade otherwise encouraging or encourage, facilitating any Third Party Party, in each case to take any action or make any statement in connection with any of that the foregoing, or make any investment in or enter into any arrangement with any other person that engages, or offers or proposes Investor is prohibited from taking pursuant to engage, in any of the foregoing, or otherwise take or cause any action or make any statement inconsistent with any of the foregoingthis paragraph 6; or
(oi) take make any action challenging request or submit any proposal, directly or indirectly, to amend or waive the validity or enforceability terms of this Agreement, or make or in any way advance any each case which would reasonably be expected to result in a public announcement of such request or proposal that proposal. Notwithstanding anything to the contrary in this Agreement, nothing in this Agreement shall prohibit or restrict the New Director from exercising his rights and fiduciary duties as a director of the Company or restrict his discussions solely among other members of the Board and/or management, advisors, representatives or agents of the Company, FSFR, the Company Board or the FSFR Board amend, modify or waive any provision of this Agreement.
Appears in 2 contracts
Samples: Director Appointment Agreement (Cannell Capital LLC), Director Appointment Agreement (Destination Xl Group, Inc.)
Standstill. Effective Executive agrees that during the Employment Term and during the Restricted Period, Executive shall not, except at the specific written request of the Board, directly or indirectly:
(a) engage in or propose, or be a Participant in any entity that directly or indirectly engages in or proposes, any material transaction between the Company or any of its Affiliates (or any of their successors), on the one hand, and Executive or any entity in which Executive is a Participant, on the other hand;
(b) acquire any equity securities of the Company or any of its Affiliates (or any of their successors) during any black out period in accordance with the Company’s Xxxxxxx Xxxxxxx Policy (other than through entering into a qualified 10(b)5-1 Plan during an open trading window or equity securities issued to Executive by the Company upon the vesting of RSUs and PSUs issued to Executive by the Company) or be a Participant in any entity that, directly or indirectly, acquires any equity securities of the Company or any of its Affiliates (or any of their successors), provided that this Section 6.04(b) shall not restrict Executive from participating in the date AZZ Inc. 2018 Employee Stock Purchase Plan, or from acquiring equity securities of the Company through such participation, in accordance with the terms and conditions thereof as may be amended from time to time;
(c) solicit proxies, or be a Participant in any entity that directly or indirectly solicits proxies, or become a Participant in any solicitation of proxies, with respect to the election of directors of the Company or any of its Affiliates (or any of their successors) in opposition to the nominees recommended by the board of directors or similar governing body of any such entity; or
(d) engage in or be a Participant in any other activity that would be reasonably expected to result in a Change in Control of the Company or any Affiliate (or any of their successors). Notwithstanding the foregoing, the foregoing provisions of this Agreement and continuing until Section 6.04 shall not be construed to prohibit or restrict the later manner in which Executive exercises Executive’s voting rights in respect of equity securities of the certification Company acquired in a manner that is not a violation of votes for the Company 2017 Annual Meeting of Stockholders or the certification of votes for the FSFR (as defined below) 2017 Annual Meeting of Stockholders (the “Standstill Period”), except to the extent expressly permitted by the terms of this Agreement, none of the Sellers shall, and Sellers shall cause their respective controlled Affiliates not to, directly or indirectly, in any manner, alone or in concert with others:
(a) solicit, or knowingly encourage or in any way engage in any solicitation of, any proxies or consents or become a “participant” in a “solicitation,” directly or indirectly, as such terms are defined in Regulation 14A under the Securities Exchange Act of 1934, as amended (the “Exchange Act”) of proxies or consents (including, without limitation, any solicitation of consents that seeks to call a special meeting of stockholders or by encouraging or participating in any “withhold” or similar campaign), in each case, with respect to securities of the Company or Fifth Street Senior Floating Rate Corp. (“FSFR”) or any securities convertible or exchangeable into or exercisable for any such securities (collectively, “securities of the Companies”);
(b) make any proposal for consideration by stockholders at any annual or special meeting of the stockholders of the Company or FSFR, whether pursuant to Rule 14a-8 under the Exchange Act, either such company’s constituent documents or otherwise;
(c) knowingly advise, encourage, support, instruct or influence any person with respect to any of the matters covered by this Section 3.1 or with respect to the voting or disposition of any securities of the Companies at any annual or special meeting of stockholders of the Company or FSFR, except in accordance with Section 3.4, or seek to do so;
(d) agree, attempt, seek or propose to deposit any securities of the Companies in any voting trust or similar arrangement, or subject any securities of the Companies to any arrangement or agreement with respect to the voting thereof, except in accordance with Section 3.4;
(e) knowingly seek or encourage any person to submit nominations in furtherance of a “contested solicitation” or take other action for the election or removal of directors with respect to the Company or FSFR, including any action that is intended to, or is reasonably likely to result in, the replacement of the investment advisor of the Company or FSFR, or a modification to the terms or conditions of either the Company’s or FSFR’s investment advisory agreement;
(f) form, join in or in any way participate in a partnership, limited partnership, syndicate or other group, including, without limitation, a group as defined under Section 13(d) of the Exchange Act (except such participation related to the reasonable unwinding of any such group currently existing as of the date of this Agreement) with any person who is not identified on Schedule I hereto (any such person, a “Third Party”), with respect to any securities of the Companies or take any other action that would interfere with the ability of Sellers to vote in accordance with this Agreement;
(g) make any disclosure, communication, announcement or statement regarding any intent, purpose, plan or proposal with respect to the FSC Board of Directors (the “Company Board”), the Company investment advisor or the terms and conditions of the Company’s investment advisory agreement, the FSFR Board of Directors (the “FSFR Board”), the FSFR investment advisor or the terms and conditions of FSFR’s investment advisory agreement, the Company, FSFR, or the management, policies or affairs of either the Company or FSFR, or with respect to this Agreement, that is inconsistent with the provisions of this Agreement;
(h) effect or seek to effect, offer or propose to effect, cause or participate in, or in any way assist or facilitate any other person to effect or seek, offer or propose to effect or participate in, any tender or exchange offer, merger, consolidation, acquisition, scheme, arrangement, business combination, recapitalization, reorganization, sale or acquisition of assets, liquidation, dissolution, extraordinary dividend, significant share repurchase or other extraordinary transaction involving the Company, FSFR or either of their investment advisors, or any of their subsidiaries or joint ventures or any of their respective securities (each, an “Extraordinary Transaction”), or make any statement or disclosure regarding any intent, purpose, plan or proposal with respect to any Extraordinary Transaction or this Agreement that is inconsistent with the provisions of this Agreement, including any intent, purpose, plan or proposal that is conditioned on, or would require waiver, amendment, nullification or invalidation of, any provision of this Agreement or take any action that could require the Company or FSFR to make any public disclosure relating to any such intent, purpose, plan, proposal or condition;
(i) (i) call or seek to call or request the calling of any meeting of stockholders at either the Company or FSFR, including by written consent, (ii) seek, alone or in concert with others, representation on, or nominate any candidate to, the Company Board or the FSFR Board, (iii) seek the removal of any member of the Company Board or the FSFR Board, (iv) seek, alone or in concert with others, or support any Third Party in seeking, to replace the investment advisor of the Company or the investment advisor of FSFR, (v) solicit consents from the Company or FSFR stockholders or otherwise act or seek to act by written consent, (vi) conduct a referendum of the Company or FSFR stockholders or (vii) make a request for any stockholders list or any other books and records in Sellers’ capacity as a Company or FSFR stockholder;
(j) purchase or cause to be purchased or otherwise acquire or agree to acquire beneficial ownership of any securities issued by the Company or FSFR, or any securities convertible into or exchangeable for securities issued by the Company or FSFR;
(k) sell, offer to sell, give, pledge, grant a security interest in, encumber, assign, grant any option for the sale of or otherwise transfer or dispose of (each, a “Transfer”) any securities issued by the Company and/or any securities convertible into or exchangeable for securities issued by the Company, unless any Buyer fails to timely perform each of its obligations under Section 1.2(b), Section 1.3(c) and/or Section 1.3(d)(i) of this Agreement;
(l) institute, solicit or join, as a party, or knowingly assist any other person in instituting, soliciting or joining, any litigation, arbitration or other proceeding against the Company or FSFR or any of their current or former directors or officers (including derivative actions), other than (i) litigation to enforce the provisions of this Agreement and (ii) counterclaims with respect to any proceeding initiated by, or on behalf of, a party to this Agreement or FSFR against Sellers;
(m) enter into or engage in any short sale or purchase, sale or grant of any option, warrant, derivative, convertible security, stock appreciation right or other similar right (including, without limitation, any put or call option or swap transaction) with respect to or having any measurement relating to any securities of the Companies;
(n) enter into any negotiations, arrangements, understanding or agreements (whether written or oral) with, or advise, finance, assist, seek to knowingly persuade or encourage, any Third Party to take any action or make any statement in connection with any of the foregoing, or make any investment in or enter into any arrangement with any other person that engages, or offers or proposes to engage, in any of the foregoing, or otherwise take or cause any action or make any statement inconsistent with any of the foregoing; or
(o) take any action challenging the validity or enforceability of this Agreement, or make or in any way advance any request or proposal that the Company, FSFR, the Company Board or the FSFR Board amend, modify or waive any provision of this Agreement.
Appears in 2 contracts
Samples: Employment Agreement (Azz Inc), Employment Agreement (Azz Inc)
Standstill. Effective (a) Each Xxxxx Group Member agrees that, without the prior written consent of the Company or as specifically permitted by Section 1.1, from the date of this Agreement and continuing until thirty (30) days prior to the later of the certification of votes deadline for the Company submission of stockholder nominations for directors for the 2017 Annual Meeting of Stockholders or pursuant to the certification of votes for the FSFR (as defined below) 2017 Annual Meeting of Stockholders Bylaws (the “Standstill Period”), except to the extent expressly permitted by the terms neither it nor any of this Agreement, none of the Sellers shallits Affiliates or Associates will, and Sellers shall it will cause their respective controlled each of its Affiliates and Associates not to, directly or indirectly, in any manner, alone or in concert with others:
(ai) solicitpurchase or cause to be purchased or otherwise acquire or agree to acquire beneficial ownership of any Common Stock or other securities issued by the Company, or knowingly encourage any securities convertible into or exchangeable for Common Stock, such that the Xxxxx Group together with its Affiliates and Associates (as defined in Section 2.3) would, in the aggregate, beneficially own a number of shares in excess of 9.8% of the then outstanding shares of Common Stock;
(ii) offer, pledge, sell, contract to sell, sell any way option or contract to purchase, purchase any option or contract to sell, grant any option, right or warrant to purchase, lend (other than in a customary commingled brokerage account in the ordinary course of business), or otherwise transfer or dispose of, directly or indirectly, any shares of Common Stock or any securities convertible into or exercisable or exchangeable, directly or indirectly, for Common Stock, whether any such transaction is to be settled by delivery of Common Stock or such other securities, in cash or otherwise (each, a “Transfer”), in each case without the prior written consent of the Company; provided that the foregoing shall not restrict the Xxxxx Group from (A) a Transfer of any shares of Common Stock to a controlled affiliate that agrees to be bound by the terms of this Agreement and executes a joinder agreement reasonably acceptable to the Company with respect thereto, or (B) a Transfer of any shares of Common Stock in an ordinary course brokers’ transaction (within the meaning of Rule 144(g) of the Securities Act of 1933, as amended) that would not, to the knowledge of any Xxxxx Group Member, result in the ultimate transferee of such shares beneficially owning, together with its affiliates, a number of shares in excess of 9.8% of the then outstanding shares of Common Stock;
(iii) compensate or agree to compensate the Nominee (or the Replacement Director, if applicable) for his services as a director of the Company or otherwise in connection with the transactions contemplated by this Agreement;
(iv) engage in any solicitation of, any of proxies or consents or become a “participant” in a “solicitation,” directly or indirectly, (as such terms are defined in Regulation 14A under the Securities Exchange Act of 1934, as amended (the “Exchange Act”)) of proxies or consents (including, without limitation, any solicitation of consents that seeks to call a special meeting of stockholders or by encouraging or participating in any “withhold” or similar campaignstockholders), in each case, with respect to securities of the Company or Fifth Street Senior Floating Rate Corp. (“FSFR”) or any securities convertible or exchangeable into or exercisable for any such securities (collectively, “securities of the Companies”)Company;
(bv) form, join or in any way participate in any “group” (within the meaning of Section 13(d)(3) of the Exchange Act) with any person who is not identified on Schedule A as a Xxxxx Group Member (any such person, a “Third Party”), with respect to the Common Stock, provided, however, that nothing herein shall limit the ability of an Affiliate of the Xxxxx Group to join the “group” following the execution of this Agreement, so long as any such Affiliate agrees to be bound by the terms and conditions of this Agreement;
(vi) deposit any Common Stock in any voting trust or subject any Common Stock to any arrangement or agreement with respect to the voting of any Common Stock, other than any such voting trust, arrangement or agreement solely among Xxxxx Group Members and otherwise in accordance with this Agreement;
(vii) seek, or encourage any person, to submit nominations in furtherance of a “contested solicitation” for the election or removal of directors with respect to the Company or seek, encourage or take any other action with respect to the election or removal of any directors;
(viii) (A) make any proposal for consideration by stockholders at any annual or special meeting of the stockholders of the Company Company, (B) publicly make any offer or FSFRproposal (with or without conditions) with respect to any merger, whether pursuant to Rule 14a-8 under acquisition, business combination, amalgamation, recapitalization, restructuring, disposition, distribution, spin-off, asset sale or other similar transaction involving the Exchange ActCompany, either such company’s constituent documents or otherwise;
(c) knowingly advise, encourage, support, instruct initiate or influence support any person Third Party with respect to any of the matters covered foregoing, (C) make any public communication in opposition to any transaction approved by this Section 3.1 the Board, (D) publicly criticize the Company’s business, financial structure or real estate, investment or other strategy, (E) call or seek to call a special meeting of stockholders, (F) initiate, encourage or participate in any “withhold” or similar campaign with respect to the voting or disposition of any securities of the Companies at any annual or special meeting of stockholders of the Company or FSFR, except in accordance with Section 3.4, or seek to do so;
(d) agree, attempt, seek or propose to deposit any securities of the Companies in any voting trust or similar arrangement, or subject any securities of the Companies to any arrangement or agreement with respect to the voting thereof, except in accordance with Section 3.4;
(e) knowingly seek or encourage any person to submit nominations in furtherance of a “contested solicitation” or take other action for the election or removal of directors with respect to the Company or FSFR, including any action that is intended to, or is reasonably likely to result in, the replacement of the investment advisor of the Company or FSFR, or a modification to the terms or conditions of either the Company’s or FSFR’s investment advisory agreement;
(f) form, join in or in any way participate in a partnership, limited partnership, syndicate or other group, including, without limitation, a group as defined under Section 13(d) of the Exchange Act (except such participation related to the reasonable unwinding of any such group currently existing as of the date of this Agreement) with any person who is not identified on Schedule I hereto (any such person, a “Third Party”), with respect to any securities of the Companies or take any other action that would interfere with the ability of Sellers to vote in accordance with this Agreement;
(gG) make any disclosure, communication, announcement or statement regarding any intent, purpose, plan or proposal with respect to the FSC Board of Directors (the “Company Board”), the Company investment advisor or the terms and conditions a request for a list of the Company’s investment advisory agreement, the FSFR Board of Directors (the “FSFR Board”), the FSFR investment advisor stockholders or the terms and conditions of FSFR’s investment advisory agreement, the Company, FSFR, or the management, policies or affairs of either the other Company or FSFR, or with respect to this Agreement, that is inconsistent with the provisions of this Agreement;records,
(h) effect or seek to effect, offer or propose to effect, cause or participate in, or in any way assist or facilitate any other person to effect or seek, offer or propose to effect or participate in, any tender or exchange offer, merger, consolidation, acquisition, scheme, arrangement, business combination, recapitalization, reorganization, sale or acquisition of assets, liquidation, dissolution, extraordinary dividend, significant share repurchase or other extraordinary transaction involving the Company, FSFR or either of their investment advisors, or any of their subsidiaries or joint ventures or any of their respective securities (each, an “Extraordinary Transaction”), or make any statement or disclosure regarding any intent, purpose, plan or proposal with respect to any Extraordinary Transaction or this Agreement that is inconsistent with the provisions of this Agreement, including any intent, purpose, plan or proposal that is conditioned on, or would require waiver, amendment, nullification or invalidation of, any provision of this Agreement or take any action that could require the Company or FSFR to make any public disclosure relating to any such intent, purpose, plan, proposal or condition;
(i) (i) call or seek to call or request the calling of any meeting of stockholders at either the Company or FSFR, including by written consent, (iiix) seek, alone or in concert with others, representation on, or nominate any candidate to, on the Company Board or the FSFR Board, (iii) seek the removal of any member of the Company Board or the FSFR Board, (iv) seek, alone or in concert with others, or support any Third Party in seeking, to replace the investment advisor of the Company or the investment advisor of FSFR, (v) solicit consents from the Company or FSFR stockholders or otherwise act or seek to act except as specifically permitted by written consent, (vi) conduct a referendum of the Company or FSFR stockholders or (vii) make a request for any stockholders list or any other books and records in Sellers’ capacity as a Company or FSFR stockholderSection 1.1;
(jx) purchase seek to advise, encourage, support or cause to be purchased or otherwise acquire or agree to acquire beneficial ownership of influence any securities issued by the Company or FSFR, or any securities convertible into or exchangeable for securities issued by the Company or FSFR;
(k) sell, offer to sell, give, pledge, grant a security interest in, encumber, assign, grant any option for the sale of or otherwise transfer or dispose of (each, a “Transfer”) any securities issued by the Company and/or any securities convertible into or exchangeable for securities issued by the Company, unless any Buyer fails to timely perform each of its obligations under Section 1.2(b), Section 1.3(c) and/or Section 1.3(d)(i) of this Agreement;
(l) institute, solicit or join, as a party, or knowingly assist any other person in instituting, soliciting or joining, any litigation, arbitration or other proceeding against the Company or FSFR or any of their current or former directors or officers (including derivative actions), other than (i) litigation to enforce the provisions of this Agreement and (ii) counterclaims with respect to any proceeding initiated by, or on behalf of, a party to this Agreement or FSFR against Sellers;
(m) enter into or engage in any short sale or purchase, sale or grant the disposition of any option, warrant, derivative, convertible security, stock appreciation right or other similar right (including, without limitation, any put or call option or swap transaction) with respect to or having any measurement relating to any securities of the CompaniesCompany, or voting of any securities of the Company at any annual or special meeting of stockholders, except in accordance with Section 1.2;
(nxi) enter into any negotiations, arrangements, understanding or agreements (whether written or oral) with, or advise, finance, assist, seek to knowingly persuade or encourage, any Third Party to take any action or make any statement in connection request or submit any proposal to amend or waive the terms of this Agreement other than through non-public communications with the Company that would not be reasonably determined to trigger public disclosure obligations for any of the foregoing, or make any investment in or enter into any arrangement with any other person that engages, or offers or proposes to engage, in any of the foregoing, or otherwise take or cause any action or make any statement inconsistent with any of the foregoingparty; or
(oxii) take disclose any action challenging the validity intention, plan or enforceability of this Agreement, or make or in any way advance any request or proposal that the Company, FSFR, the Company Board or the FSFR Board amend, modify or waive arrangement inconsistent with any provision of this AgreementSection 2.1 or publicly or privately encourage or support any other current or future stockholder of the Company to take any of the actions set forth in this Section 2.1(a).
(b) Notwithstanding anything to the contrary, nothing in this Agreement shall prohibit or restrict any director of the Company, including the Nominee (or any Replacement Director, if applicable), from exercising his or her rights and fiduciary duties as a director of the Company, including, but not limited to, (1) taking any action or making any statement at any meeting of the Board or of any committee thereof or (2) making any statement to the Chief Executive Officer, the Chief Financial Officer or any other director of the Company in his or her capacity as a director.
Appears in 2 contracts
Samples: Settlement Agreement (New Senior Investment Group Inc.), Settlement Agreement (Levin Capital Strategies, L.P.)
Standstill. Effective from the date of this Agreement and continuing The Kanen Group agrees that until the later expiration of the certification of votes for the Company 2017 Annual Meeting of Stockholders or the certification of votes for the FSFR Standstill Period, it shall not, and shall cause its controlled Affiliates and Associates (as such terms are defined belowin Rule 12b-2 under the Exchange Act) 2017 Annual Meeting of Stockholders and its and their respective principals, directors, general partners, members, officers, employees, and agents and representatives acting on their behalf (collectively, the “Standstill PeriodKanen Affiliates”), except to the extent expressly permitted by the terms of this Agreement, none of the Sellers shall, and Sellers shall cause their respective controlled Affiliates ) not to, directly or indirectly, without the prior express written invitation or authorization by the Board:
(a) purchase or otherwise acquire, or agree to purchase or otherwise acquire, including through swap or hedging transactions or otherwise, any shares of Common Stock if, immediately after such purchase or acquisition, the Kanen Group, together with the Kanen Affiliates, would own, control or otherwise have any beneficial or other ownership interest in the aggregate of more than 9.9% of the then outstanding shares of Common Stock, provided that any shares of Common Stock granted or awarded to any of the Kanen Group Designees in their capacities as directors of the Company shall not be counted toward the 9.9% ownership limitation set forth in this Section 2(a);
(b) make, engage in or in any mannerway participate in any “solicitation” (as such term is used in the proxy rules of the SEC, but without regard to the exclusion set forth in Rule 14a-1(1)(2)(iv) under the Exchange Act) of proxies, consents or voting authorizations with respect to the election or removal of directors of the Company or any other matter or proposal in respect of which the Company’s stockholders are requested or required to vote on, or become a “participant” (as such term is used in the proxy rules of the SEC) or assist any “participant” in any such solicitation of proxies, consents or voting authorizations from the Company’s stockholders;
(c) encourage, influence, induce or advise or assist any Person in so encouraging, influencing, inducing or advising any Person with respect to the giving, revocation or withholding of any proxy, consent or other authorization to vote any shares of Common Stock (other than solicitation activity that is consistent with the recommendation of and expressly authorized by the Board in connection with any matter submitted to the Company’s stockholders for their consideration and vote);
(d) form, join, encourage, influence, advise, act in concert with or in any way participate in any “group” (as defined pursuant to Section 13(d) of the Exchange Act), with respect to any Voting Securities (as defined below), other than solely with controlled Kanen Affiliates with respect to Voting Securities now or hereafter owned by them;
(e) (i) engage in, or become a party or counterparty to, any swap or hedging transaction or other derivative agreement of any nature with respect to Voting Securities or (ii) acquire, or offer, seek or agree to acquire, by purchase or otherwise, or direct any third party in the acquisition of, any Voting Securities, or rights or options to acquire any Voting Securities of the Company, or engage in any swap or hedging transactions or other derivative agreements of any nature with respect to Voting Securities, in each case of clause (i) or (ii) above;
(f) sell, offer or agree to sell, through swap or hedging transactions or otherwise, voting rights decoupled from the underlying Common Stock held by the Kanen Group or any Kanen Affiliate to any Third Party (as defined below);
(g) knowingly sell, offer or agree to sell to a Third Party, including through swap or hedging transactions or otherwise, any securities of the Company held by the Kanen Group or a Kanen Affiliate that 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 more than 4.9% of the then outstanding shares of Common Stock (including due to such Third Party, together with its affiliates and associates, owning, controlling or otherwise having any beneficial or other ownership interest of more than 4.9% of the outstanding shares of Common Stock prior to such sale, offer or agreement to sell), except in a transaction previously authorized and approved by the Board;
(h) effect or seek, offer or propose to effect, cause, make or participate in any tender offer, exchange offer, merger, consolidation, acquisition, business combination, recapitalization, business reorganization, spin-off/split-off, restructuring, liquidation, dissolution or other extraordinary transaction involving the Company or any of its subsidiaries or the Company’s securities or a material amount of the assets of the Company and its subsidiaries, taken as a whole (“Extraordinary Transaction”), or frustrate or seek to frustrate the pendency or consummation of any Extraordinary Transaction approved, recommended, proposed or endorsed by the Board, or make any public statement with respect to an Extraordinary Transaction (it being understood and agreed that the foregoing shall not restrict the Kanen Group from tendering shares, receiving payment for shares or otherwise participating in any such transaction, pro rata, on the same basis as all other stockholders of the Company, or from participating in any such transaction that previously has been approved and recommended by the Board), or make any proposal, either alone or in concert with others:, to the Company or the Board that would reasonably be expected to require or result in a public announcement regarding any of the types of matters set forth above in this Section 2;
(ai) solicitenter into a voting trust or proxy, arrangement or knowingly encourage agreement or in subject any way engage in Voting Securities to any solicitation ofvoting trust or proxy, any proxies arrangement or consents or become a “participant” in a “solicitation,” directly or indirectly, as such terms are defined in Regulation 14A under the Securities Exchange Act of 1934, as amended (the “Exchange Act”) of proxies or consents (including, without limitation, any solicitation of consents that seeks to call a special meeting of stockholders or by encouraging or participating in any “withhold” or similar campaign)agreement, in each casecase other than solely with other controlled Kanen Affiliates, with respect to Voting Securities now or hereafter owned by them and other than granting proxies in solicitations approved with respect to matters recommended and submitted by the Board to the Company’s stockholders;
(j) engage in any short sale or any purchase, sale or grant of any option, warrant, convertible security, stock appreciation right, or other similar right (including any put or call option or “swap” transaction) with respect to any security (other than a broad-based market basket or index) that includes, relates to or derives any significant part of its value from a decline in the market price or value of the securities of the Company or Fifth Street Senior Floating Rate Corp. (“FSFR”) or any securities convertible or exchangeable into or exercisable for any such securities (collectively, “securities of the Companies”)Company;
(bk) make or be the proponent of any stockholder proposal for consideration by stockholders at any annual or special meeting of the stockholders of the Company or FSFR, whether (pursuant to Rule 14a-8 under the Exchange Act or otherwise);
(l) alone or in concert with others, (i) call or seek to call or convene any meeting of stockholders, including any proposed action by written consent, (ii) except as set forth in Section 1 of this Agreement, seek election or appointment to, or representation on, the Board, or nominate or propose the nomination of, or recommend the nomination of, any candidate to, the Board, (iii) seek the removal or resignation of any member of the Board, (iv) solicit consents from stockholders or otherwise act to seek or act by written consent, or (v) conduct a referendum (irrespective of whether binding or precatory) of stockholders;
(m) make any request for a stockholder list or for any other Company materials, books or records under Section 220 of the DGCL or other statutory or regulatory provisions providing for stockholder access to stockholder lists or Company books and records;
(n) make any public statement, announcement, or public proposal or request with respect to or take any action in support of (i) any change in the number or term of directors or the filling of any vacancies on the Board, (ii) any change in the capitalization or dividend policy of the Company, (iii) any change in the Company’s management, business, operating strategy, governance policies or corporate structure, (iv) any waiver, amendment or modification to the Company’s certificate of incorporation or By-Laws, or other actions which may impede the acquisition of control of the Company by any person, (v) causing any class or series of securities of the Company to be delisted from, or to cease to be authorized to be quoted on, any securities exchange or (vi) causing a class or series of equity securities of the Company to become eligible for termination of registration pursuant to Section 12(g)(4) of the Exchange Act;
(o) institute, either such company’s constituent documents solicit, assist, opt into, or join (or threaten to do so) any litigation, action, complaint, arbitration or other proceeding against or involving the Company or any of its current former or future directors, officers, employees, stockholders or Affiliates (including derivative actions, direct class actions or otherwise), in order to effect or take any of the actions expressly prohibited by this Section 2 or to assert any claims against the Company or any of its current or former or future directors, officers, employees, stockholders or Affiliates for breach of fiduciary duty, U.S. federal securities law disclosure violations or otherwise;
(cp) knowingly advisemake any statement or announcement that constitutes an ad hominem attack on, encourageor otherwise disparages or causes to be disparaged, supportthe Company, instruct or influence any person with respect to any of the matters covered by this Section 3.1 Company’s known Affiliates, or with respect to the voting or disposition of any securities of the Companies at Company’s past, present or future officers or directors appointed during the term of this Agreement, or take any annual action that would reasonably be expected to result in any such statement or special meeting of stockholders of announcement being publicly made by the Company or FSFR, except any Third Party (including in accordance order to comply with Section 3.4, or seek to do soany disclosure obligations under the applicable SEC rules);
(d) agree, attempt, seek or propose to deposit any securities of the Companies in any voting trust or similar arrangement, or subject any securities of the Companies to any arrangement or agreement with respect to the voting thereof, except in accordance with Section 3.4;
(e) knowingly seek or encourage any person to submit nominations in furtherance of a “contested solicitation” or take other action for the election or removal of directors with respect to the Company or FSFR, including any action that is intended to, or is reasonably likely to result in, the replacement of the investment advisor of the Company or FSFR, or a modification to the terms or conditions of either the Company’s or FSFR’s investment advisory agreement;
(f) form, join in or in any way participate in a partnership, limited partnership, syndicate or other group, including, without limitation, a group as defined under Section 13(d) of the Exchange Act (except such participation related to the reasonable unwinding of any such group currently existing as of the date of this Agreement) with any person who is not identified on Schedule I hereto (any such person, a “Third Party”), with respect to any securities of the Companies or take any other action that would interfere with the ability of Sellers to vote in accordance with this Agreement;
(gq) make any public disclosure, communication, announcement or statement regarding any intent, purpose, plan or proposal with respect to the FSC Board of Directors (the “Company Board”), the Company investment advisor or the terms and conditions of the Company’s investment advisory agreement, the FSFR Board of Directors (the “FSFR Board”), the FSFR investment advisor or the terms and conditions of FSFR’s investment advisory agreement, the Company, FSFR, or the its management, policies or affairs affairs, any of either the Company its securities or FSFR, assets or with respect to this Agreement, Agreement that is inconsistent with the provisions of this Agreement;
(h) effect or seek to effect, offer or propose to effect, cause or participate in, or in any way assist or facilitate any other person to effect or seek, offer or propose to effect or participate in, any tender or exchange offer, merger, consolidation, acquisition, scheme, arrangement, business combination, recapitalization, reorganization, sale or acquisition of assets, liquidation, dissolution, extraordinary dividend, significant share repurchase or other extraordinary transaction involving the Company, FSFR or either of their investment advisors, or any of their subsidiaries or joint ventures or any of their respective securities (each, an “Extraordinary Transaction”), or make any statement or disclosure regarding any intent, purpose, plan or proposal with respect to any Extraordinary Transaction or this Agreement that is inconsistent with the provisions of this Agreement, including any intent, purpose, plan or proposal that is conditioned on, or would require waiver, amendment, nullification or invalidation of, any provision of this Agreement or take any action that could require the Company or FSFR to make any public disclosure relating to any such intent, purpose, plan, proposal or condition;
(i) (i) call or seek to call or request the calling of any meeting of stockholders at either the Company or FSFR, including by written consent, (ii) seek, alone or in concert with others, representation on, or nominate any candidate to, the Company Board or the FSFR Board, (iii) seek the removal of any member of the Company Board or the FSFR Board, (iv) seek, alone or in concert with others, or support any Third Party in seeking, to replace the investment advisor of the Company or the investment advisor of FSFR, (v) solicit consents from the Company or FSFR stockholders or otherwise act or seek to act by written consent, (vi) conduct a referendum of the Company or FSFR stockholders or (vii) make a request for any stockholders list or any other books and records in Sellers’ capacity as a Company or FSFR stockholder;
(j) purchase or cause to be purchased or otherwise acquire or agree to acquire beneficial ownership of any securities issued by the Company or FSFR, or any securities convertible into or exchangeable for securities issued by the Company or FSFR;
(k) sell, offer to sell, give, pledge, grant a security interest in, encumber, assign, grant any option for the sale of or otherwise transfer or dispose of (each, a “Transfer”) any securities issued by the Company and/or any securities convertible into or exchangeable for securities issued by the Company, unless any Buyer fails to timely perform each of its obligations under Section 1.2(b), Section 1.3(c) and/or Section 1.3(d)(i) of this Agreement;
(l) institute, solicit or join, as a party, or knowingly assist any other person in instituting, soliciting or joining, any litigation, arbitration or other proceeding against the Company or FSFR or any of their current or former directors or officers (including derivative actions), other than (i) litigation to enforce the provisions of this Agreement and (ii) counterclaims with respect to any proceeding initiated by, or on behalf of, a party to this Agreement or FSFR against Sellers;
(m) enter into or engage in any short sale or purchase, sale or grant of any option, warrant, derivative, convertible security, stock appreciation right or other similar right (including, without limitation, any put or call option or swap transaction) with respect to or having any measurement relating to any securities of the Companies;
(nr) enter into any discussions, negotiations, arrangements, understanding agreements or agreements (whether written or oral) with, or advise, finance, assist, seek to knowingly persuade or encourage, understandings with any Third Party to take any action or that the Kanen Group is prohibited from taking pursuant to this Section 2;
(s) make any statement request or submit any proposal to amend or waive the terms of this Agreement, in connection with each case which would reasonably be expected to result in a public announcement of such request or proposal; or
(t) disclose any intention, plan, commitment or arrangement to do any of the foregoing, or make any investment in or enter into any arrangement with any other person that engages, or offers or proposes to engage, in any of the foregoing, or otherwise take or cause any action or make any statement inconsistent with any of the foregoing; or
(o) take any action challenging the validity or enforceability of this Agreement, or make or in any way advance any request or proposal that the Company, FSFR, the Company Board or the FSFR Board amend, modify or waive any provision of this Agreement.
Appears in 2 contracts
Samples: Settlement Agreement (Philotimo Fund, LP), Settlement Agreement (Aqua Metals, Inc.)
Standstill. Effective from Each member of the date of this Agreement and continuing Kanen Group agrees that until the later of the certification of votes for the Company 2017 Annual Meeting of Stockholders or the certification of votes for the FSFR (as defined below) 2017 Annual Meeting of Stockholders (the “Standstill Period”)Termination Date, except to the extent expressly permitted by the terms of this Agreement, none of the Sellers shallit shall not, and Sellers shall cause their respective controlled its Affiliates not to, directly or indirectly, in any manner, alone or in concert with others:
and Associates (a) solicit, or knowingly encourage or in any way engage in any solicitation of, any proxies or consents or become a “participant” in a “solicitation,” directly or indirectly, as such terms are defined in Regulation 14A Rule 12b-2 under the Securities Exchange Act of 1934, as amended (the “Exchange Act”)) of proxies and its and their respective principals, directors, general partners, members, officers, employees, and agents and representatives acting on their behalf (collectively, the “Kanen Affiliates”) not to, directly or consents (includingindirectly, without limitationthe prior express written invitation or authorization by the Board:
(a) make, engage in or in any solicitation of consents that seeks to call a special meeting of stockholders or by encouraging or participating way participate in any “withholdsolicitation” or similar campaign(as such term is used in the proxy rules of the Securities and Exchange Commission (the “SEC”), but without regard to the exclusion set forth in each caseRule 14a-1(1)(2)(iv) under the Exchange Act) of proxies, consents or voting authorizations with respect to securities the election or removal of directors of the Company or Fifth Street Senior Floating Rate Corp. any other matter or proposal in respect of which the Company’s stockholders are requested or required to vote on, or become a “participant” (“FSFR”as such term is used in the proxy rules of the SEC) or assist any securities convertible or exchangeable into or exercisable for “participant” in any such securities (collectivelysolicitation of proxies, “securities of consents or voting authorizations from the Companies”)Company’s stockholders;
(b) encourage, influence, induce or advise or assist any Person in so encouraging, influencing, inducing or advising any Person with respect to the giving, revocation or withholding of any proxy, consent or other authorization to vote any shares of Common Stock (other than solicitation activity that is consistent with the recommendation of and expressly authorized by the Board in connection with any matter submitted to the Company’s stockholders for their consideration and vote);
(c) form, join, encourage, influence, advise, act in concert with or in any way participate in any “group” (as defined pursuant to Section 13(d) of the Exchange Act), with respect to any Voting Securities (as defined below), other than solely with controlled Kanen Affiliates with respect to Voting Securities now or hereafter owned by them;
(d) (i) engage in, or become a party or counterparty to, any swap or hedging transaction or other derivative agreement of any nature with respect to Voting Securities or (ii) acquire, or offer, seek or agree to acquire, by purchase or otherwise, or direct any third party in the acquisition of, any Voting Securities, or rights or options to acquire any Voting Securities of the Company, or engage in any swap or hedging transactions or other derivative agreements of any nature with respect to Voting Securities, in each case of clause (i) or (ii) above;
(e) sell, offer or agree to sell, through swap or hedging transactions or otherwise, voting rights decoupled from the underlying Common Stock held by the Kanen Group or any Kanen Affiliate to any Third Party (as defined below);
(f) effect or seek, offer or propose to effect, cause, make or participate in any tender offer, exchange offer, merger, consolidation, acquisition, business combination, recapitalization, business reorganization, spin-off/split-off, restructuring, liquidation, dissolution sale or transfer of all or substantially all of the Company’s assets in one or a series of transactions, sale or transfer of a majority of the outstanding shares of the Common Stock (through a merger, stock purchase, or otherwise), any changes in the Company’s capital structure or other extraordinary transaction involving the Company or any of its subsidiaries or the Company’s securities or a material amount of the assets of the Company and its subsidiaries, taken as a whole (“Extraordinary Transaction”), or frustrate or seek to frustrate the pendency or consummation of any Extraordinary Transaction approved, recommended, proposed or endorsed by the Board, or make any proposal public statement with respect to an Extraordinary Transaction (it being understood and agreed that the foregoing shall not restrict the Kanen Group from tendering shares, receiving payment for consideration by stockholders at shares or otherwise participating in any annual or special meeting of such transaction, pro rata, on the same basis as all other stockholders of the Company, or from participating in any such transaction that previously has been approved and recommended by the Board), or make any proposal, either alone or in concert with others, to the Company or FSFRthe Board that would reasonably be expected to require or result in a public announcement regarding any of the types of matters set forth above in this Section 3;
(g) enter into a voting trust or proxy, whether arrangement or agreement or subject any Voting Securities to any voting trust or proxy, arrangement or agreement, in each case other than solely with other controlled Kanen Affiliates, with respect to Voting Securities now or hereafter owned by them and other than granting proxies in solicitations approved with respect to matters recommended and submitted by the Board to the Company’s stockholders;
(h) engage in any short sale or any purchase, sale or grant of any option, warrant, convertible security, stock appreciation right, or other similar right (including any put or call option or “swap” transaction) with respect to any security (other than a broad-based market basket or index) that includes, relates to or derives any significant part of its value from a decline in the market price or value of the securities of the Company;
(i) make or be the proponent of any stockholder proposal (pursuant to Rule 14a-8 under the Exchange Act, either such company’s constituent documents Act or otherwise);
(cj) knowingly advisealone or in concert with others, encourage(i) call or seek to call or convene any meeting of stockholders, supportincluding a “town hall meeting” and any proposed action by written consent, instruct (ii) except as set forth in Section 1 of this Agreement, seek election or influence appointment to, or representation on, the Board, or nominate or propose the nomination of, or recommend the nomination of, any person candidate to, the Board, (iii) seek the removal or resignation of any member of the Board, (iv) solicit consents from stockholders or otherwise act to seek or act by written consent, (v) initiate, encourage or participate in any “vote no,” “withhold” or similar campaign, or (vi) conduct a referendum (irrespective of whether binding or precatory) of stockholders;
(k) make any request for a stockholder list or for any other Company materials, books or records under Section 220 of the Delaware General Corporation Law, as amended, or other statutory or regulatory provisions providing for stockholder access to stockholder lists or Company books and records;
(l) make any public statement, announcement, or public proposal or request with respect to or take any action in support of (i) any change in the number or term of directors or the filling of any vacancies on the Board, (ii) any change in the capitalization or dividend policy of the matters covered by this Section 3.1 Company, (iii) any change in the Company’s management, business, operating strategy, governance policies or with respect corporate structure, (iv) any waiver, amendment or modification to the voting Company’s Amended and Restated Certificate of Incorporation or disposition By-Laws, as amended, or other actions which may impede the acquisition of control of the Company by any person, (v) causing any class or series of securities of the Companies at Company to be delisted from, or to cease to be authorized to be quoted on, any annual securities exchange or special meeting (vi) causing a class or series of stockholders equity securities of the Company or FSFR, except in accordance with to become eligible for termination of registration pursuant to Section 3.4, or seek to do so;
(d) agree, attempt, seek or propose to deposit any securities of the Companies in any voting trust or similar arrangement, or subject any securities of the Companies to any arrangement or agreement with respect to the voting thereof, except in accordance with Section 3.4;
(e) knowingly seek or encourage any person to submit nominations in furtherance of a “contested solicitation” or take other action for the election or removal of directors with respect to the Company or FSFR, including any action that is intended to, or is reasonably likely to result in, the replacement of the investment advisor of the Company or FSFR, or a modification to the terms or conditions of either the Company’s or FSFR’s investment advisory agreement;
(f) form, join in or in any way participate in a partnership, limited partnership, syndicate or other group, including, without limitation, a group as defined under Section 13(d12(g)(4) of the Exchange Act (except such participation related to the reasonable unwinding of any such group currently existing as of the date of this Agreement) with any person who is not identified on Schedule I hereto (any such person, a “Third Party”), with respect to any securities of the Companies or take any other action that would interfere with the ability of Sellers to vote in accordance with this AgreementAct;
(gm) make any disclosure, communication, announcement or statement publicly or privately, in a manner that could reasonably be expected to become public regarding any intent, purpose, plan or proposal with respect to the FSC Board of Directors (the “Company Board”), the Company investment advisor or the terms and conditions of the Company’s investment advisory agreement, the FSFR Board of Directors (the “FSFR Board”), the FSFR investment advisor or the terms and conditions of FSFR’s investment advisory agreement, the Company, FSFR, or the its management, policies or affairs affairs, any of either the Company its securities or FSFR, assets or with respect to this Agreement, Agreement that is inconsistent with the provisions of this Agreement;
(h) effect or seek to effect, offer or propose to effect, cause or participate in, or in any way assist or facilitate any other person to effect or seek, offer or propose to effect or participate in, any tender or exchange offer, merger, consolidation, acquisition, scheme, arrangement, business combination, recapitalization, reorganization, sale or acquisition of assets, liquidation, dissolution, extraordinary dividend, significant share repurchase or other extraordinary transaction involving the Company, FSFR or either of their investment advisors, or any of their subsidiaries or joint ventures or any of their respective securities (each, an “Extraordinary Transaction”), or make any statement or disclosure regarding any intent, purpose, plan or proposal with respect to any Extraordinary Transaction or this Agreement that is inconsistent with the provisions of this Agreement, including any intent, purpose, plan or proposal that is conditioned on, or would require waiver, amendment, nullification or invalidation of, any provision of this Agreement or take any action that could require the Company or FSFR to make any public disclosure relating to any such intent, purpose, plan, proposal or condition;
(i) (i) call or seek to call or request the calling of any meeting of stockholders at either the Company or FSFR, including by written consent, (ii) seek, alone or in concert with others, representation on, or nominate any candidate to, the Company Board or the FSFR Board, (iii) seek the removal of any member of the Company Board or the FSFR Board, (iv) seek, alone or in concert with others, or support any Third Party in seeking, to replace the investment advisor of the Company or the investment advisor of FSFR, (v) solicit consents from the Company or FSFR stockholders or otherwise act or seek to act by written consent, (vi) conduct a referendum of the Company or FSFR stockholders or (vii) make a request for any stockholders list or any other books and records in Sellers’ capacity as a Company or FSFR stockholder;
(j) purchase or cause to be purchased or otherwise acquire or agree to acquire beneficial ownership of any securities issued by the Company or FSFR, or any securities convertible into or exchangeable for securities issued by the Company or FSFR;
(k) sell, offer to sell, give, pledge, grant a security interest in, encumber, assign, grant any option for the sale of or otherwise transfer or dispose of (each, a “Transfer”) any securities issued by the Company and/or any securities convertible into or exchangeable for securities issued by the Company, unless any Buyer fails to timely perform each of its obligations under Section 1.2(b), Section 1.3(c) and/or Section 1.3(d)(i) of this Agreement;
(l) institute, solicit or join, as a party, or knowingly assist any other person in instituting, soliciting or joining, any litigation, arbitration or other proceeding against the Company or FSFR or any of their current or former directors or officers (including derivative actions), other than (i) litigation to enforce the provisions of this Agreement and (ii) counterclaims with respect to any proceeding initiated by, or on behalf of, a party to this Agreement or FSFR against Sellers;
(m) enter into or engage in any short sale or purchase, sale or grant of any option, warrant, derivative, convertible security, stock appreciation right or other similar right (including, without limitation, any put or call option or swap transaction) with respect to or having any measurement relating to any securities of the Companies;
(n) enter into any discussions, negotiations, arrangements, understanding agreements or agreements (whether written or oral) with, or advise, finance, assist, seek to knowingly persuade or encourage, understandings with any Third Party to take any action or that the Kanen Group is prohibited from taking pursuant to this Section 3;
(o) make any statement request or submit any proposal to amend or waive the terms of this Agreement, in connection with each case which would reasonably be expected to result in a public announcement of such request or proposal; or
(p) disclose any intention, plan, commitment or arrangement to do any of the foregoing. Notwithstanding anything in this Section 3 or elsewhere in this Agreement, nothing in this Agreement shall prohibit or make any investment in restrict the Kanen Group from (i) communicating privately with the Board or enter into any arrangement with any other person that engages, or offers or proposes to engage, in any of the foregoingCompany’s officers regarding any matter, so long as such communications are not intended to, and would not reasonably be expected to, require any public disclosure of such communications, (ii) communicating with stockholders of the Company and others in a manner that does not otherwise violate this Section 3 or Section 4(d), or otherwise take or cause (iii) taking any action or make any statement inconsistent necessary to comply with any law, rule or regulation or any action required by any governmental or regulatory authority or stock exchange that has jurisdiction over the Kanen Group. Nothing in this Section 3 or elsewhere in this Agreement shall be deemed to limit the exercise in good faith by any New Director (or a Replacement Director) of such person’s fiduciary duties solely in such person’s capacity as a director of the foregoing; or
(o) take any action challenging the validity or enforceability of this Agreement, or make or in any way advance any request or proposal that the Company, FSFR, the Company Board or the FSFR Board amend, modify or waive any provision of this Agreement.
Appears in 2 contracts
Samples: Cooperation Agreement (1847 Goedeker Inc.), Cooperation Agreement (Philotimo Fund, LP)
Standstill. As of the Effective from Date, except as previously disclosed to the date Company in writing, the Investor and its Subsidiaries do not beneficially own any securities of NII entitled to be voted generally in the election of directors or any direct or indirect options or other rights to acquire any such securities (“NII Securities”). From the Effective Date and so long as the provisions of this Agreement and continuing until the later of the certification of votes for the Company 2017 Annual Meeting of Stockholders or the certification of votes for the FSFR (as defined below) 2017 Annual Meeting of Stockholders (the “Standstill Period”)Section 6.11 are in effect, except to the extent expressly permitted as specifically requested in writing by the terms of this AgreementNII, none of the Sellers shallInvestor or its Affiliates or any of the advisors to the Investor, and Sellers shall cause their respective controlled Affiliates not to(a) will publicly propose or publicly announce or otherwise disclose an intent to propose or enter into or agree to enter into, singly or with any other Person or directly or indirectly, in (i) any mannerform of business combination, alone acquisition or in concert other similar transaction relating to NII or any of its material Subsidiaries, (ii) any form of restructuring, recapitalization or similar transaction with others:
(a) solicitrespect to NII or any of its material Subsidiaries, or knowingly encourage (iii) any demand, request or proposal to amend, waive or terminate this Section 6.11; and (b) singly or with any other Person or directly or indirectly, (i) acquire, or offer, propose or agree to acquire, by tender offer, purchase or otherwise, NII Securities (including acquisition of beneficial ownership of any NII Securities or of any derivative positions or contracts, except any hedging activity or pursuant to the Call Agreement, whether or not cash settled, based on the value of any NII Securities) or any material assets, indebtedness or businesses of NII, (ii) make, or in any way engage in any solicitation of, any proxies or consents or become a “participant” in a “solicitation,” directly or indirectly, as such terms are defined in Regulation 14A under the Securities Exchange Act of 1934, as amended (the “Exchange Act”) of proxies or consents (including, without limitationactively participate in, any solicitation of consents that seeks to call a special meeting of stockholders or by encouraging or participating in any “withhold” or similar campaign), in each case, with respect to securities of the Company or Fifth Street Senior Floating Rate Corp. (“FSFR”) or any securities convertible or exchangeable into or exercisable for any such securities (collectively, “securities of the Companies”);
(b) make any proposal for consideration by stockholders at any annual or special meeting of the stockholders of the Company or FSFR, whether pursuant to Rule 14a-8 under the Exchange Act, either such company’s constituent documents or otherwise;
(c) knowingly advise, encourage, support, instruct or influence any person proxies with respect to any NII Securities (including by the execution of the matters covered action by this Section 3.1 written consent), (iii) participate in a program or organized effort to influence any person with respect to the voting or disposition of any securities of the Companies at any annual or special meeting of stockholders of the Company or FSFR, except in accordance with Section 3.4NII Securities, or seek to do so;
(div) agree, attempt, seek or propose to deposit any securities of the Companies in any voting trust or similar arrangement, or subject any securities of the Companies to any arrangement or agreement with respect to the voting thereof, except in accordance with Section 3.4;
(e) knowingly seek or encourage any person to submit nominations in furtherance of a “contested solicitation” or take other action for the election or removal of directors with respect to the Company or FSFR, including any action that is intended to, or is reasonably likely to result in, the replacement of the investment advisor of the Company or FSFR, or a modification to the terms or conditions of either the Company’s or FSFR’s investment advisory agreement;
(f) form, join participate in or in actively encourage the formation of any way participate in a partnership, limited partnership, syndicate or other group, including, without limitation, a group as defined under Section 13(d) of the Exchange Act (except such participation related to the reasonable unwinding of any such group currently existing as of the date of this Agreement) with any person who is not identified on Schedule I hereto (any such person, a “Third Party”), with respect to any securities of the Companies that owns or take any other action that would interfere with the ability of Sellers to vote in accordance with this Agreement;
(g) make any disclosure, communication, announcement seeks or statement regarding any intent, purpose, plan or proposal with respect to the FSC Board of Directors (the “Company Board”), the Company investment advisor or the terms and conditions of the Company’s investment advisory agreement, the FSFR Board of Directors (the “FSFR Board”), the FSFR investment advisor or the terms and conditions of FSFR’s investment advisory agreement, the Company, FSFR, or the management, policies or affairs of either the Company or FSFR, or with respect to this Agreement, that is inconsistent with the provisions of this Agreement;
(h) effect or seek to effect, offer or propose to effect, cause or participate in, or in any way assist or facilitate any other person to effect or seek, offer or propose to effect or participate in, any tender or exchange offer, merger, consolidation, acquisition, scheme, arrangement, business combination, recapitalization, reorganization, sale or acquisition of assets, liquidation, dissolution, extraordinary dividend, significant share repurchase or other extraordinary transaction involving the Company, FSFR or either of their investment advisors, or any of their subsidiaries or joint ventures or any of their respective securities (each, an “Extraordinary Transaction”), or make any statement or disclosure regarding any intent, purpose, plan or proposal with respect to any Extraordinary Transaction or this Agreement that is inconsistent with the provisions of this Agreement, including any intent, purpose, plan or proposal that is conditioned on, or would require waiver, amendment, nullification or invalidation of, any provision of this Agreement or take any action that could require the Company or FSFR to make any public disclosure relating to any such intent, purpose, plan, proposal or condition;
(i) (i) call or seek to call or request the calling of any meeting of stockholders at either the Company or FSFR, including by written consent, (ii) seek, alone or in concert with others, representation on, or nominate any candidate to, the Company Board or the FSFR Board, (iii) seek the removal of any member of the Company Board or the FSFR Board, (iv) seek, alone or in concert with others, or support any Third Party in seeking, to replace the investment advisor of the Company or the investment advisor of FSFR, (v) solicit consents from the Company or FSFR stockholders or otherwise act or seek to act by written consent, (vi) conduct a referendum of the Company or FSFR stockholders or (vii) make a request for any stockholders list or any other books and records in Sellers’ capacity as a Company or FSFR stockholder;
(j) purchase or cause to be purchased or otherwise acquire or agree offers to acquire beneficial ownership of any securities issued by the Company NII Securities or FSFRmaterial assets, indebtedness or any securities convertible into businesses of NII or exchangeable for securities issued by the Company or FSFR;
(k) sell, offer to sell, give, pledge, grant a security interest in, encumber, assign, grant any option for the sale purpose of circumventing any provision of this Section 6.11; ***. The provisions of this Section 6.11 shall terminate and be of no further effect on the earlier of (i) ***, (ii) the time, if any, when NII enters into a definitive agreement providing for a merger, consolidation or otherwise transfer other business combination transaction or commences a process by which it proposes to sell or dispose of (each, a “Transfer”) any securities issued by the Company and/or any securities convertible into itself or exchangeable for securities issued by the Company, unless any Buyer fails to timely perform each substantially all of its obligations under Section 1.2(b), Section 1.3(c) and/or Section 1.3(d)(i) of this Agreement;
assets (l) institute, solicit or join, as a party, or knowingly assist any other person in instituting, soliciting or joining, any litigation, arbitration or other proceeding against the Company or FSFR or any of their current business or former directors or officers (including derivative actions)Subsidiary, other than (i) litigation to enforce in which case the provisions of this Agreement and (ii) counterclaims Section 6.11 shall no longer apply with respect to any proceeding initiated bysuch business or Subsidiary), (iii) the time, if any, when a tender offer or exchange offer is commenced by a third Person for equity securities of NII, or (iv) on behalf of, a party to this Agreement or FSFR against Sellers;
the later of (mA) enter into or engage in any short sale or purchase, sale or grant of any option, warrant, derivative, convertible security, stock appreciation right or other similar right (including, without limitation, any put or call option or swap transaction) with respect to or having any measurement relating to any securities the date on which the Investor and its Subsidiaries no longer own over 5% of the Companies;
issued and outstanding NII Shares and (nB) enter into any negotiationsthe date that is six months after the rights granted to the Investor pursuant to Article 7, arrangementsincluding the Special Approval Rights, understanding have terminated. The foregoing shall in no way impact Investor’s rights to acquire, register or agreements (whether written dispose of NII Securities as contemplated by the Transaction Documents or oral) with, or advise, finance, assist, seek to knowingly persuade or encourage, any Third Party to take any action or make any statement in connection with any of Investor’s other rights under the foregoing, or make any investment in or enter into any arrangement with any other person that engages, or offers or proposes to engage, in any of the foregoing, or otherwise take or cause any action or make any statement inconsistent with any of the foregoing; or
(o) take any action challenging the validity or enforceability of this Agreement, or make or in any way advance any request or proposal that the Company, FSFR, the Company Board or the FSFR Board amend, modify or waive any provision of this AgreementTransaction Documents.
Appears in 2 contracts
Samples: Investment and Securities Subscription Agreement (Grupo Televisa, S.A.B.), Investment and Securities Subscription Agreement (Nii Holdings Inc)
Standstill. Effective from During the date of this Agreement and continuing until Cooperation Period, without the later prior written consent of the certification of votes for the Company 2017 Annual Meeting of Stockholders or the certification of votes for the FSFR (as defined below) 2017 Annual Meeting of Stockholders (the “Standstill Period”)Board, except to the extent expressly permitted by the terms of this Agreement, none of the Sellers shallMill Road shall not, and Sellers shall cause their respective controlled its Affiliates and Associates under its control not to, directly or indirectly, in any manner, alone or in concert with others:
(a) solicit(i) nominate or recommend for nomination a person for election at any Shareholder Meeting at which directors of the Board are to be elected; (ii) initiate, or knowingly encourage or in any way engage participate in any solicitation ofof proxies in respect of any election contest with respect to the Company’s directors; (iii) submit any shareholder proposal for consideration at, or bring any other business before, any Shareholder Meeting; (iv) initiate, encourage or participate in any solicitation of proxies in respect of any shareholder proposal for consideration at, or bring any other business before, any Shareholder Meeting; or (v) initiate, encourage or participate in any “withhold” or similar campaign with respect to any Shareholder Meeting or any solicitation of written consents of shareholders; provided, however, that nothing in this Section 3 shall restrict Mill Road from privately identifying any candidates that the Board may consider adding to fill any vacancies that may arise from time to time on the Board, whether through the resignation of any member of the Board or become otherwise, as long as such actions do not create a “participant” in a “solicitation,” public disclosure obligation for Mill Road;
(b) acquire, offer or propose to acquire, or agree to acquire, directly or indirectly, whether by purchase, tender or exchange offer, through the acquisition of control of another person, by joining a partnership, limited partnership, syndicate or other group (including any group of persons that would be treated as such terms are defined in Regulation 14A a single “person” under Section 13(d) of the Securities Exchange Act of 1934, as amended (the “Exchange Act”), through swap or hedging transactions or otherwise, any voting securities of the Company or any voting rights decoupled from the underlying voting securities of the Company, except that this Agreement shall not prohibit Mill Road from acquiring additional shares of Class A Common Stock in excess of the greater of (i) 17.5% of proxies the Company’s outstanding Class A Common Stock or consents (ii) 525,167 shares of Class A Common Stock;
(c) engage in any short sale or any purchase, sale or grant of any option, warrant, convertible security, stock appreciation right, or other similar right (including, without limitation, any solicitation of consents that seeks to call a special meeting of stockholders swap or by encouraging or participating in any “withhold” or similar campaign), in each case, with respect to securities of the Company or Fifth Street Senior Floating Rate Corp. (“FSFR”) or any securities convertible or exchangeable into or exercisable for any such securities (collectively, “securities of the Companies”);
(b) make any proposal for consideration by stockholders at any annual or special meeting of the stockholders of the Company or FSFR, whether pursuant to Rule 14a-8 under the Exchange Act, either such company’s constituent documents hedging transactions or otherwise;
(c) knowingly advise, encourage, support, instruct or influence any person with respect to any security (other than a broad-based market basket or index) that includes, relates to or derives any significant part of its value from a decline in the market price or value of the matters covered by this Section 3.1 or with respect to the voting or disposition of any securities of the Companies at any annual or special meeting of stockholders of the Company or FSFR, except in accordance with Section 3.4, or seek to do soCompany;
(d) agreeform, attempt, seek join or propose in any way participate in any group with respect to deposit any voting securities of the Companies Company in connection with any election or removal contest with respect to the Company’s directors or any shareholder proposal or other business brought before any Shareholder Meeting;
(e) deposit any Company voting securities in any voting trust or similar arrangement, or subject any Company voting securities of the Companies to any arrangement or agreement with respect to the voting thereof, except in accordance with Section 3.4;
(e) knowingly seek or encourage any person to submit nominations in furtherance of a “contested solicitation” or take other action for the election or removal of directors with respect to the Company or FSFR, including any action that is intended to, or is reasonably likely to result in, the replacement of the investment advisor of the Company or FSFR, or a modification to the terms or conditions of either the Company’s or FSFR’s investment advisory agreement;
(f) form, join in or in any way participate in a partnership, limited partnership, syndicate or other group, including, without limitation, a group as defined under Section 13(d) of the Exchange Act (except such participation related to the reasonable unwinding of any such group currently existing as of the date of this Agreement) with any person who is not identified on Schedule I hereto (any such person, a “Third Party”), with respect to any securities of the Companies or take any other action that would interfere with the ability of Sellers to vote in accordance with this Agreement;
(g) make any disclosure, communication, announcement or statement regarding any intent, purpose, plan or proposal with respect to the FSC Board of Directors (the “Company Board”), the Company investment advisor or the terms and conditions of the Company’s investment advisory agreement, the FSFR Board of Directors (the “FSFR Board”), the FSFR investment advisor or the terms and conditions of FSFR’s investment advisory agreement, the Company, FSFR, or the management, policies or affairs of either the Company or FSFR, or with respect to this Agreement, that is inconsistent with the provisions of this Agreement;
(h) effect or seek to effect, offer or propose to effect, cause or participate in, or in any way assist or facilitate any other person to effect or seek, offer or propose to effect or participate in, any tender or exchange offer, merger, consolidation, acquisition, scheme, arrangement, business combination, recapitalization, reorganization, sale or acquisition of assets, liquidation, dissolution, extraordinary dividend, significant share repurchase or other extraordinary transaction involving the Company, FSFR or either of their investment advisors, or any of their subsidiaries or joint ventures or any of their respective securities (each, an “Extraordinary Transaction”), or make any statement or disclosure regarding any intent, purpose, plan or proposal with respect to any Extraordinary Transaction or this Agreement that is inconsistent with the provisions of this Agreement, including any intent, purpose, plan or proposal that is conditioned on, or would require waiver, amendment, nullification or invalidation of, any provision of this Agreement or take any action that could require the Company or FSFR to make any public disclosure relating to any such intent, purpose, plan, proposal or condition;
(i) (i) call or seek to call or request the calling of any meeting of stockholders at either the Company or FSFR, including by written consent, (ii) seek, alone or in concert with others, representation on, or nominate to amend any candidate to, the Company Board or the FSFR Board, (iii) seek the removal of any member provision of the Company Board Company’s Restated Certificate of Incorporation or Restated By-laws;
(g) demand or make a request for an inspection of the FSFR Board, Company’s books and records;
(ivh) seek, alone or in concert communicate with others, or support any Third Party in seeking, to replace the investment advisor shareholders of the Company or others pursuant to Rule 14a-1(l)(2)(iv) under the investment advisor Exchange Act;
(i) (i) make any offer or proposal (with or without conditions) with respect to (A) any merger, acquisition, recapitalization, restructuring, disposition or other business combination, involving Mill Road or its Affiliates or Associates and the Company, and/or (B) any of FSFR, (v) solicit consents from the Company assets or FSFR stockholders or otherwise act or seek to act by written consent, (vi) conduct a referendum business of the Company or FSFR stockholders its Affiliates or any rights or options to acquire any such assets or business from any person, (ii) solicit a third party to make an offer or proposal (with or without conditions a “Third Party Transaction”) with respect to (A) any merger, acquisition, recapitalization, restructuring, disposition or other business combination involving the Company, and/or (B) any of the assets or business of the Company or its Affiliates or any rights or options to acquire any such assets or business from any person, or publicly encourage, initiate or support any third party in making such an offer or proposal, or (viiiii) make publicly comment on any proposal regarding any Third Party Transaction; provided, however, the restrictions in this Section 3 shall not apply to Mill Road or its Affiliates and Associates (and no further action by the Company shall be required to terminate such restrictions) in response to (A) a request public offer by a third party to effect a Third Party Transaction; (B) the public announcement of the entering into an agreement or arrangement by the Company with any third party to effect a Third Party Transaction; or (C) the public recommendation of the Board of a Third Party Transaction; and provided, further, that nothing in this Section 3 shall restrict Mill Road from privately making any such offer or proposal to the Board as long as such actions do not create a public disclosure obligation for any stockholders list or any other books and records in Sellers’ capacity as a Company or FSFR stockholderMill Road;
(j) purchase or cause to be purchased or otherwise acquire or agree to acquire beneficial ownership of any securities issued by the Company or FSFR, or any securities convertible into or exchangeable for securities issued by the Company or FSFR;
(k) sell, offer to sell, give, pledge, grant a security interest in, encumber, assign, grant any option for the sale of or otherwise transfer or dispose of (each, a “Transfer”) any securities issued by the Company and/or any securities convertible into or exchangeable for securities issued by the Company, unless any Buyer fails to timely perform each of its obligations under Section 1.2(b), Section 1.3(c) and/or Section 1.3(d)(i) of this Agreement;
(l) institute, solicit or join, as a party, or knowingly assist any other person in instituting, soliciting or joining, any litigation, arbitration or other proceeding against the Company or FSFR or any of their current or former directors or officers (including derivative actions), other than (i) litigation to enforce the provisions of this Agreement and (ii) counterclaims with respect to any proceeding initiated by, or on behalf of, a party to this Agreement or FSFR against Sellers;
(m) enter into or engage in any short sale or purchase, sale or grant of any option, warrant, derivative, convertible security, stock appreciation right or other similar right (including, without limitation, any put or call option or swap transaction) with respect to or having any measurement relating to any securities of the Companies;
(n) enter into any negotiations, arrangements, understanding agreements or agreements (whether written or oral) withunderstandings with any third party with respect to the foregoing, or advise, finance, assist, encourage or seek to knowingly persuade or encourage, any Third Party third party to take any action or make any statement in connection with any of the foregoing, or make any investment in or enter into any arrangement with any other person that engages, or offers or proposes respect to engage, in any of the foregoing, or otherwise take or cause any action or make any statement materially inconsistent with any of the foregoing; or
(ok) take any action challenging the validity or enforceability of this Section 3 or this Agreement, or publicly make or in any way advance publicly any request or proposal that the CompanyCompany or Board amends, FSFR, the Company Board modifies or the FSFR Board amend, modify or waive waives any provision of this Agreement. Nothing in this Agreement shall be deemed to limit the ability of any Mill Road Designee to exercise his fiduciary duties under law solely in his capacity as a director of the Company.
Appears in 2 contracts
Samples: Settlement Agreement (Ecology & Environment Inc), Settlement Agreement (Mill Road Capital II, L.P.)
Standstill. Effective from During the period beginning on the date of this Agreement and continuing until ending on the later earlier of (x) the certification of votes for day following the Company’s 2016 annual meeting (including any adjournment or postponement or any special meeting held in lieu thereof) or (y) 14 days after the Company 2017 Annual Meeting receives notice from Casablanca of Stockholders or a material breach by the certification Company of votes for any obligation under this Agreement which has not been cured; provided that, if such material breach cannot be cured, the FSFR (as defined below) 2017 Annual Meeting of Stockholders date on which the Company receives such notice (the date on which such periods ends, the “Standstill PeriodTermination Date”), except to the extent expressly permitted by the terms of this AgreementCasablanca shall not, none of the Sellers shalldirectly or indirectly, and Sellers Casablanca shall cause their respective controlled Affiliates each Affiliate of Casablanca not to, directly or indirectly, indirectly (it being understood and agreed that the following restrictions shall not apply to Xx. Xxxxxxx Xxxxxx acting solely in any manner, alone or in concert his capacity as a director of the Company consistent with others:his fiduciary duties to the Company):
(a) solicitsolicit proxies or written consents of shareholders or conduct any other type of referendum (binding or non-binding) with respect to, or knowingly encourage or in any way engage in any solicitation from the holders of, any proxies or consents the Voting Securities (as defined below), or become a “participant” in a “solicitation,” directly or indirectly, (as such terms are term is defined in Regulation Instruction 3 to Item 4 of Schedule 14A promulgated under the Securities Exchange Act of 1934, as amended (the “Exchange Act”) of proxies in or consents assist any person or entity not a party to this Agreement (including, without limitation, any solicitation of consents that seeks to call a special meeting of stockholders or by encouraging or participating “Third Party”) in any “withholdsolicitation” of any proxy, consent or similar campaign), in each case, with respect other authority (as such terms are defined under the Exchange Act) to securities vote any shares of the Company or Fifth Street Senior Floating Rate Corp. (“FSFR”) or any securities convertible or exchangeable into or exercisable for any such securities (collectively, “securities of the Companies”)Voting Securities;
(b) make encourage, advise or influence any proposal for consideration by stockholders at other person or assist any annual Third Party in so encouraging, assisting or special meeting influencing any person with respect to the giving or withholding of the stockholders any proxy, consent or other authority to vote or in conducting any type of the Company referendum (binding or FSFR, whether pursuant to Rule 14a-8 under the Exchange Act, either such company’s constituent documents or otherwisenon-binding);
(c) knowingly advise, encourage, support, instruct form or influence any person with respect to any of the matters covered by this Section 3.1 or with respect to the voting or disposition of any securities of the Companies at any annual or special meeting of stockholders of the Company or FSFR, except in accordance with Section 3.4, or seek to do so;
(d) agree, attempt, seek or propose to deposit any securities of the Companies in any voting trust or similar arrangement, or subject any securities of the Companies to any arrangement or agreement with respect to the voting thereof, except in accordance with Section 3.4;
(e) knowingly seek or encourage any person to submit nominations in furtherance of a “contested solicitation” or take other action for the election or removal of directors with respect to the Company or FSFR, including any action that is intended to, or is reasonably likely to result in, the replacement of the investment advisor of the Company or FSFR, or a modification to the terms or conditions of either the Company’s or FSFR’s investment advisory agreement;
(f) form, join in or in any way participate in a partnership, limited partnership, syndicate or other group, including, without limitation, including a group “group” as defined under Section 13(d) of the Exchange Act (except such participation related to the reasonable unwinding of any such group currently existing as of the date of this Agreement) with any person who is not identified on Schedule I hereto (any such person, a “Third Party”)Act, with respect to the Voting Securities (for the avoidance of doubt, excluding any securities group composed solely of the Companies Casablanca and its Affiliates) or take otherwise support or participate in any other action that would interfere with the ability of Sellers to vote in accordance with this Agreement;
(g) make any disclosure, communication, announcement or statement regarding any intent, purpose, plan or proposal effort by a Third Party with respect to the FSC Board of Directors matters set forth in clauses (the “Company Board”), the Company investment advisor a) or the terms and conditions (f) herein;
(d) present at any annual meeting or any special meeting of the Company’s investment advisory agreement, the FSFR Board of Directors (the “FSFR Board”), the FSFR investment advisor shareholders or the terms and conditions of FSFR’s investment advisory agreement, the Company, FSFR, or the management, policies or affairs of either the Company or FSFR, or with respect to this Agreement, that is inconsistent with the provisions of this Agreement;
(h) effect or seek to effect, offer or propose to effect, cause or participate in, or in any way assist or facilitate any other person to effect or seek, offer or propose to effect or participate in, any tender or exchange offer, merger, consolidation, acquisition, scheme, arrangement, business combination, recapitalization, reorganization, sale or acquisition of assets, liquidation, dissolution, extraordinary dividend, significant share repurchase or other extraordinary transaction involving the Company, FSFR or either of their investment advisors, or any of their subsidiaries or joint ventures or any of their respective securities (each, an “Extraordinary Transaction”), or make any statement or disclosure regarding any intent, purpose, plan or proposal with respect to any Extraordinary Transaction or this Agreement that is inconsistent with the provisions of this Agreement, including any intent, purpose, plan or proposal that is conditioned on, or would require waiver, amendment, nullification or invalidation of, any provision of this Agreement or take any through action that could require the Company or FSFR to make any public disclosure relating to any such intent, purpose, plan, proposal or condition;
(i) (i) call or seek to call or request the calling of any meeting of stockholders at either the Company or FSFR, including by written consent, (ii) seek, alone consent any proposal for consideration for action by shareholders or in concert with others, representation on, or nominate any candidate to, the Company Board or the FSFR Board, (iii) seek the removal of any member of the Company Board or propose any nominee for election to the FSFR Board or seek representation on the Board, except as set forth in this Agreement;
(ive) seekgrant any proxy, alone consent or other authority to vote with respect to any matters (other than to the named proxies included in concert with others, the Company’s proxy card for any annual meeting or support special meeting of shareholders) or deposit any Third Party in seeking, to replace the investment advisor Voting Securities of the Company in a voting trust or the investment advisor subject them to a voting agreement or other arrangement of FSFRsimilar effect with respect to any annual meeting except as provided in Section 2 below, (v) solicit consents from the Company special meeting of shareholders or FSFR stockholders or otherwise act or seek to act action by written consentconsent (excluding customary brokerage accounts, margin accounts, prime brokerage accounts and the like);
(vi) conduct a referendum of the Company or FSFR stockholders or (viif) make a any request for any stockholders list stocklist materials or any other books and records in Sellers’ capacity as a of the Company whether pursuant to Chapter 1701.37 of the Ohio Revised Code (the Ohio General Corporation Law) or FSFR stockholderotherwise;
(jg) without the prior approval of the Board, separately or in conjunction with any other person or entity in which it is or proposes to be either a principal, partner or financing source or is acting or proposes to act as broker or agent for compensation, propose (publicly, privately or to the Company) or participate in, effect or seek to effect, any tender offer or exchange offer, merger, acquisition, reorganization, restructuring, recapitalization or other business combination involving the Company or a material amount of the assets or businesses of the Company (collectively, an “Extraordinary Transaction”) or encourage, initiate or support any other Third Party in any such activity; provided, that Casablanca may participate in any tender offer or exchange offer by a Third Party, or a combination thereof, and may vote the Voting Securities beneficially owned by Casablanca, in its sole discretion, in respect of any Extraordinary Transaction;
(h) purchase or cause to be purchased or otherwise acquire or agree to acquire beneficial ownership Beneficial Ownership of any securities issued by more than 20% of the Company or FSFR, or any securities convertible into or exchangeable for securities issued by the Company or FSFRVoting Securities;
(k) sell, offer to sell, give, pledge, grant a security interest in, encumber, assign, grant any option for the sale of or otherwise transfer or dispose of (each, a “Transfer”) any securities issued by the Company and/or any securities convertible into or exchangeable for securities issued by the Company, unless any Buyer fails to timely perform each of its obligations under Section 1.2(b), Section 1.3(c) and/or Section 1.3(d)(i) of this Agreement;
(l) institute, solicit or join, as a party, or knowingly assist any other person in instituting, soliciting or joining, any litigation, arbitration or other proceeding against the Company or FSFR or any of their current or former directors or officers (including derivative actions), other than (i) litigation to enforce the provisions of this Agreement and (ii) counterclaims with respect to any proceeding initiated by, or on behalf of, a party to this Agreement or FSFR against Sellers;
(m) enter into or engage in any short sale or purchase, sale or grant of any option, warrant, derivative, convertible security, stock appreciation right or other similar right (including, without limitation, any put or call option or swap transaction) with respect to or having any measurement relating to any securities of the Companies;
(n) enter into any negotiations, arrangementsagreements, understanding arrangements or agreements (whether written or oral) with, or advise, finance, assist, seek to knowingly persuade or encourage, understandings with any Third Party with respect to take the matters set forth in this Section 1; or
(j) request, directly or indirectly, any action amendment or make any statement in connection with any waiver of the foregoing, or make any investment in or enter into any arrangement other than through non-public communications with any other person that engages, or offers or proposes to engage, in any the officers and directors of the foregoing, or otherwise take or cause Company that do not trigger any action or make any statement inconsistent with any public disclosure obligations on the part of the foregoing; or
(o) take any action challenging the validity Company or enforceability of this Agreement, or make or in any way advance any request or proposal that the Company, FSFR, the Company Board or the FSFR Board amend, modify or waive any provision of this AgreementCasablanca.
Appears in 2 contracts
Samples: Director Nomination Agreement (Cliffs Natural Resources Inc.), Director Nomination Agreement (Casablanca Capital LP)
Standstill. Effective from From the date of this Agreement and continuing until the later of the certification of votes for the Company 2017 Annual Meeting of Stockholders or the certification of votes for the FSFR (as defined below) 2017 Annual Meeting of Stockholders (the “Standstill Period”)Termination Date, except pursuant to the extent expressly permitted a negotiated transaction approved by the terms of this AgreementBoard, none of the Sellers shall, Stockholder and Sellers shall cause their respective controlled its Affiliates not to, directly or indirectlywill not, in any manner, alone directly or in concert with othersindirectly:
(a) solicitmake, effect, initiate, cause or participate in (A) any acquisition of beneficial ownership of any securities of Commerce and its Related Entities, (B) any acquisition of any assets of Commerce and its Related Entities, (C) any tender offer, exchange offer, merger, business combination, recapitalization, restructuring, liquidation, dissolution or extraordinary transaction involving Commerce and its Related Entities, or knowingly encourage involving any securities or assets of Commerce and its Related Entities or (D) any “solicitation” of “proxies” (as those terms are used in any way engage in any solicitation of, any proxies the proxy rules of the Securities and Exchange Commission) or consents with respect to any securities of Commerce;
(b) form, join or become a “participant” participate in a “solicitation,group” directly or indirectly, (as such terms are defined in Regulation 14A under the Securities Exchange Act of 1934, as amended (amended, and the “Exchange Act”) of proxies or consents (including, without limitation, any solicitation of consents that seeks to call a special meeting of stockholders or by encouraging or participating in any “withhold” or similar campaignrules promulgated thereunder), in each casepooling agreement, syndicate or voting trust with respect to the beneficial ownership of any securities of the Company Commerce, or Fifth Street Senior Floating Rate Corp. (“FSFR”) or any securities convertible or exchangeable into or exercisable for any such securities (collectively, “otherwise act in concert with another stockholder of securities of Commerce for the Companies”);
(b) make any proposal for consideration by stockholders at any annual purpose of acquiring, holding, voting or special meeting disposing of the stockholders of the Company or FSFR, whether pursuant to Rule 14a-8 under the Exchange Act, either such companyCommerce’s constituent documents or otherwisesecurities;
(c) knowingly advise, encourage, support, instruct or influence any person with respect to any of the matters covered by this Section 3.1 or with respect to the voting or disposition of any securities of the Companies at any annual or special meeting of stockholders of the Company or FSFR, except in accordance with Section 3.4, or seek to do so;
(d) agree, attempt, seek or propose to deposit any securities of the Companies in any voting trust or similar arrangement, or subject any securities of the Companies to any arrangement or agreement with respect to the voting thereof, except in accordance with Section 3.4;
(e) knowingly seek or encourage any person to submit nominations in furtherance of a “contested solicitation” or take other action for the election or removal of directors with respect to the Company or FSFR, including any action that is intended to, or is reasonably likely to result in, the replacement of the investment advisor of the Company or FSFR, or a modification to the terms or conditions of either the Company’s or FSFR’s investment advisory agreement;
(f) form, join in or in any way participate in a partnership, limited partnership, syndicate or other group, including, without limitation, a group as defined under Section 13(d) of the Exchange Act (except such participation related to the reasonable unwinding of any such group currently existing as of the date of this Agreement) with any person who is not identified on Schedule I hereto (any such person, a “Third Party”), with respect to any securities of the Companies or take any other action that would interfere with the ability of Sellers to vote in accordance with this Agreement;
(g) make any disclosure, communication, announcement or statement regarding any intent, purpose, plan or proposal with respect to the FSC Board of Directors (the “Company Board”), the Company investment advisor or the terms and conditions of the Company’s investment advisory agreement, the FSFR Board of Directors (the “FSFR Board”), the FSFR investment advisor or the terms and conditions of FSFR’s investment advisory agreement, the Company, FSFR, or the management, policies or affairs of either the Company or FSFR, or with respect to this Agreement, that is inconsistent with the provisions of this Agreement;
(h) effect or seek to effect, offer or propose to effect, cause or participate in, or in any way assist or facilitate any other person to effect or seek, offer or propose to effect or participate in, any tender or exchange offer, merger, consolidation, acquisition, scheme, arrangement, business combination, recapitalization, reorganization, sale or acquisition of assets, liquidation, dissolution, extraordinary dividend, significant share repurchase or other extraordinary transaction involving the Company, FSFR or either of their investment advisors, or any of their subsidiaries or joint ventures or any of their respective securities (each, an “Extraordinary Transaction”), or make any statement or disclosure regarding any intent, purpose, plan or proposal with respect to any Extraordinary Transaction or this Agreement that is inconsistent with the provisions of this Agreement, including any intent, purpose, plan or proposal that is conditioned on, or would require waiver, amendment, nullification or invalidation of, any provision of this Agreement or take any action that could require the Company or FSFR to make any public disclosure relating to any such intent, purpose, plan, proposal or condition;
(i) (i) call or seek to call or request the calling of any meeting of stockholders at either the Company or FSFR, including by written consent, (ii) seekact, alone or in concert with others, representation onto seek to control or influence the management, or nominate any candidate to, the Company Board or the FSFR Board, (iii) seek the removal policies of any member of the Company Board or the FSFR Board, (iv) seek, alone or in concert with others, or support any Third Party in seeking, to replace the investment advisor of the Company or the investment advisor of FSFR, (v) solicit consents from the Company or FSFR stockholders or otherwise act or seek to act by written consent, (vi) conduct a referendum of the Company or FSFR stockholders or (vii) make a request for any stockholders list or any other books and records in Sellers’ capacity as a Company or FSFR stockholderCommerce;
(j) purchase or cause to be purchased or otherwise acquire or agree to acquire beneficial ownership of any securities issued by the Company or FSFR, or any securities convertible into or exchangeable for securities issued by the Company or FSFR;
(k) sell, offer to sell, give, pledge, grant a security interest in, encumber, assign, grant any option for the sale of or otherwise transfer or dispose of (each, a “Transfer”) any securities issued by the Company and/or any securities convertible into or exchangeable for securities issued by the Company, unless any Buyer fails to timely perform each of its obligations under Section 1.2(b), Section 1.3(c) and/or Section 1.3(d)(i) of this Agreement;
(l) institute, solicit or join, as a party, or knowingly assist any other person in instituting, soliciting or joining, any litigation, arbitration or other proceeding against the Company or FSFR or any of their current or former directors or officers (including derivative actions), other than (i) litigation to enforce the provisions of this Agreement and (ii) counterclaims with respect to any proceeding initiated by, or on behalf of, a party to this Agreement or FSFR against Sellers;
(m) enter into or engage in any short sale or purchase, sale or grant of any option, warrant, derivative, convertible security, stock appreciation right or other similar right (including, without limitation, any put or call option or swap transaction) with respect to or having any measurement relating to any securities of the Companies;
(n) enter into any negotiations, arrangements, understanding or agreements (whether written or oral) with, or advise, finance, assist, seek to knowingly persuade or encourage, any Third Party to take any action or make any statement in connection with any of the foregoing, or make any investment in or enter into any arrangement with any other person that engages, or offers or proposes to engage, in any of the foregoing, or otherwise take or cause any action or make any statement inconsistent with any of the foregoing; or
(od) take any action challenging which might force Commerce to make a public announcement regarding any of the validity or enforceability types of matters set forth in clause “(a)” of this Agreement, or make or in any way advance any sentence;
(e) request or proposal propose that the CompanyCommerce (or its directors, FSFRofficers, the Company Board employees or the FSFR Board amendagents), modify directly or indirectly, amend or waive any provision of this AgreementSection 3.2, including this subsection (e);
(f) agree or offer to take, or encourage or propose (publicly or otherwise) the taking of, any action referred to in clauses “(a)”, “(b)”, “(c)”, “(d)” or “(e)” of this sentence;
(g) assist, induce or encourage any other Person to take any action referred to in clauses “(a)”, “(b)”, “(c)”, “(d)” or “(e)” of this sentence;
(h) enter into any discussions or arrangements with any third party with respect to the taking of any action referred to in clauses “(a)”, “(b)”, “(c)”, “(d)” or “(e)” of this sentence; or
(i) vote any capital stock of Commerce in favor of, or initiate, propose or otherwise solicit stockholders of Commerce for the approval of one or more stockholder proposals or induce or attempt to induce any other individual, firm, corporation, partnership, or other entity to initiate any stockholder proposal.
Appears in 2 contracts
Samples: Separation Agreement (Commerce Energy Group, Inc.), Voting and Standstill Agreement (Commerce Energy Group, Inc.)
Standstill. Effective from (a) During the date Standstill Period, each Legion Party shall not, and shall cause its Representatives not to, directly or indirectly:
(i) make any announcement or proposal with respect to, or offer, seek, propose or indicate an interest in, (A) any form of this Agreement and continuing until the later business combination or acquisition or other transaction relating to a material amount of the certification assets or securities of votes Nutrisystem or any of its subsidiaries, (B) any form of restructuring, recapitalization or similar transaction with respect to Nutrisystem or any of its subsidiaries or (C) any form of tender or exchange offer for the Company 2017 Annual Meeting shares of Stockholders Common Stock, whether or the certification not such transaction involves a Change of votes for the FSFR Control (as defined below) 2017 Annual Meeting of Stockholders Nutrisystem; it being understood that the foregoing shall not prohibit the Legion Parties or their Affiliates from acquiring Common Stock within the limitations set forth in Section 5(a)(iii);
(the “Standstill Period”)ii) engage in any solicitation of proxies or written consents to vote any voting securities of Nutrisystem, except or conduct any type of binding or nonbinding referendum with respect to the extent expressly permitted by the terms any voting securities of this AgreementNutrisystem, none of the Sellers shall, and Sellers shall cause their respective controlled Affiliates not toor assist or participate in any other way, directly or indirectly, in any manner, alone solicitation of proxies (or in concert written consents) with others:
(a) solicitrespect to, or knowingly encourage or in any way engage in any solicitation from the holders of, any proxies voting securities of Nutrisystem, or consents or otherwise become a “participant” in a “solicitation,” directly or indirectly, as such terms are defined in Instruction 3 of Item 4 of Schedule 14A and Rule 14a-1 of Regulation 14A 14A, respectively, under the Securities Exchange Act of 1934, as amended (the “Exchange Act”) ), to vote any securities of proxies or consents Nutrisystem (includingincluding by initiating, without limitation, any solicitation of consents that seeks to call a special meeting of stockholders or by encouraging or participating in any “withhold” or similar campaign), in each case, with respect to securities of the Company or Fifth Street Senior Floating Rate Corp. (“FSFR”) or any securities convertible or exchangeable into or exercisable for any such securities (collectively, “securities of the Companies”);
(biii) make purchase or otherwise acquire, or offer, seek, propose or agree to acquire, ownership (including beneficial ownership) of any proposal for consideration by stockholders at securities of Nutrisystem, any annual direct or special meeting indirect rights or options to acquire any such securities, any derivative securities or contracts or instruments in any way related to the price of shares of Common Stock, or any assets or liabilities of Nutrisystem; provided that the Legion Parties and their Affiliates, in the aggregate, may acquire beneficial ownership of up to 9.9% of the stockholders outstanding shares of the Company or FSFR, whether pursuant to Rule 14a-8 under the Exchange Act, either such company’s constituent documents or otherwiseCommon Stock;
(civ) knowingly seek to advise, encourage, support, instruct encourage or influence any person with respect to any of the matters covered by this Section 3.1 or with respect to the voting of (or execution of a written consent in respect of) or disposition of any securities of Nutrisystem;
(v) sell, offer or agree to sell directly or indirectly, through swap or hedging transactions or otherwise, the Companies securities of Nutrisystem or any rights decoupled from the underlying securities held by any of the Legion Parties to any person not (A) a party to this Agreement, (B) a member of the Board, (C) an officer of Nutrisystem, or (D) an Affiliate of any Party (any person not set forth in clauses (A) through (D) shall be referred to as a “Third Party”) that would knowingly (after due inquiry) result in such Third Party, together with its Affiliates, owning, controlling or otherwise having any, beneficial or other ownership interest representing in the aggregate in excess of five percent (5.0%) of the shares of Common Stock outstanding at such time;
(vi) take any public action in support of or make any proposal, statement or request that publicly (A) seeks to advise, control, change, or influence the Board or management of the Company, including any plans or proposals to change the voting standard with respect to director elections, number or term of directors or to fill any vacancies on the Board, except as set forth in this Agreement, (B) seeks any material change in, or criticizes, the capitalization, stock repurchase programs and practices or dividend policy of Nutrisystem, (C) seeks any other material change in, or criticizes, Nutrisystem’s management, business or corporate structure, or (D) seeks to have Nutrisystem waive or make amendments or modifications to Nutrisystem’s Amended and Restated Bylaws (as amended, the “Bylaws”), or other actions that may impede or facilitate the acquisition of control of Nutrisystem by any person;
(vii) communicate with stockholders of Nutrisystem or others pursuant to Rule 14a-1(l)(2)(iv) under the Exchange Act;
(viii) engage in any course of conduct with the purpose of causing stockholders of Nutrisystem to vote contrary to the recommendation of the Board on any matter presented to Nutrisystem’s stockholders for their vote at any annual or special meeting of Nutrisystem’s stockholders of the Company or FSFR, except in accordance with Section 3.4, by written consent;
(ix) call or seek to do socall, or request the call of, alone or in concert with others, any meeting of stockholders, whether or not such a meeting is permitted by the Bylaws, including a “town hall meeting”;
(dx) agree, attempt, seek or propose to deposit any securities shares of the Companies Common Stock in any voting trust or similar arrangement, or subject any securities shares of the Companies Common Stock to any arrangement or agreement with respect to the voting thereofof any shares of Common Stock (other than any such voting trust, except arrangement or agreement solely among the Legion Parties that is otherwise in accordance with Section 3.4this Agreement);
(exi) knowingly seek seek, or encourage or advise any person person, to submit nominations in furtherance of a “contested solicitation” or take other action for the election or removal of directors with respect to the Company Nutrisystem or FSFRseek, including any action that is intended to, or is reasonably likely to result in, the replacement of the investment advisor of the Company or FSFR, or a modification to the terms or conditions of either the Company’s or FSFR’s investment advisory agreement;
(f) form, join in or in any way participate in a partnership, limited partnership, syndicate or other group, including, without limitation, a group as defined under Section 13(d) of the Exchange Act (except such participation related to the reasonable unwinding of any such group currently existing as of the date of this Agreement) with any person who is not identified on Schedule I hereto (any such person, a “Third Party”), with respect to any securities of the Companies encourage or take any other action that would interfere with the ability of Sellers to vote in accordance with this Agreement;
(g) make any disclosure, communication, announcement or statement regarding any intent, purpose, plan or proposal with respect to the FSC Board election or removal of Directors any directors;
(xii) form, join or in any other way participate in any “group” (within the meaning of Section 13(d)(3) of the Exchange Act) with respect to the Common Stock; provided, however, that nothing herein shall limit the ability of an Affiliate of a Legion Party to join the “Company Board”)group” following the execution of this Agreement, the Company investment advisor or so long as any such Affiliate agrees in writing to be subject to, and bound by, the terms and conditions of this Agreement and, if required under the Company’s investment advisory agreementExchange Act, files a Schedule 13D or an amendment thereof, as applicable, within two (2) business days after disclosing that the FSFR Board of Directors (the “FSFR Board”), the FSFR investment advisor or the terms and conditions of FSFR’s investment advisory agreement, the Company, FSFR, or the management, policies or affairs of either the Company or FSFR, or Legion Party has formed a group with respect to this Agreement, that is inconsistent with the provisions of this Agreementsuch Affiliate;
(hxiii) effect demand a copy of Nutrisystem’s list of stockholders or seek to effect, offer or propose to effect, cause or participate in, or in any way assist or facilitate any its other person to effect or seek, offer or propose to effect or participate in, any tender or exchange offer, merger, consolidation, acquisition, scheme, arrangement, business combination, recapitalization, reorganization, sale or acquisition of assets, liquidation, dissolution, extraordinary dividend, significant share repurchase or other extraordinary transaction involving the Company, FSFR or either of their investment advisors, or any of their subsidiaries or joint ventures or any of their respective securities (each, an “Extraordinary Transaction”), books and records or make any statement request under any statutory or regulatory provisions of Delaware law;
(xiv) make any request or submit any proposal to amend or waive the terms of this Section 5 other than through non-public communications with Nutrisystem that would not be reasonably likely to trigger public disclosure regarding obligations for any intentParty; or
(xv) enter into any discussions, purposenegotiations, plan agreements or proposal understandings with any person with respect to any Extraordinary Transaction or this Agreement that is inconsistent with action the provisions of this Agreement, including any intent, purpose, plan or proposal that is conditioned on, or would require waiver, amendment, nullification or invalidation of, any provision of this Agreement or take any action that could require the Company or FSFR to make any public disclosure relating to any such intent, purpose, plan, proposal or condition;
(i) (i) call or seek to call or request the calling of any meeting of stockholders at either the Company or FSFR, including by written consent, (ii) seek, alone or in concert with others, representation on, or nominate any candidate to, the Company Board or the FSFR Board, (iii) seek the removal of any member of the Company Board or the FSFR Board, (iv) seek, alone or in concert with others, or support any Third Party in seeking, to replace the investment advisor of the Company or the investment advisor of FSFR, (v) solicit consents Legion Parties are prohibited from the Company or FSFR stockholders or otherwise act or seek to act by written consent, (vi) conduct a referendum of the Company or FSFR stockholders or (vii) make a request for any stockholders list or any other books and records in Sellers’ capacity as a Company or FSFR stockholder;
(j) purchase or cause to be purchased or otherwise acquire or agree to acquire beneficial ownership of any securities issued by the Company or FSFR, or any securities convertible into or exchangeable for securities issued by the Company or FSFR;
(k) sell, offer to sell, give, pledge, grant a security interest in, encumber, assign, grant any option for the sale of or otherwise transfer or dispose of (each, a “Transfer”) any securities issued by the Company and/or any securities convertible into or exchangeable for securities issued by the Company, unless any Buyer fails to timely perform each of its obligations under Section 1.2(b), Section 1.3(c) and/or Section 1.3(d)(i) of this Agreement;
(l) institute, solicit or join, as a party, or knowingly assist any other person in instituting, soliciting or joining, any litigation, arbitration or other proceeding against the Company or FSFR or any of their current or former directors or officers (including derivative actions), other than (i) litigation to enforce the provisions of this Agreement and (ii) counterclaims with respect to any proceeding initiated by, or on behalf of, a party taking pursuant to this Agreement or FSFR against Sellers;
(m) enter into or engage in any short sale or purchase, sale or grant of any option, warrant, derivative, convertible security, stock appreciation right or other similar right (including, without limitation, any put or call option or swap transaction) with respect to or having any measurement relating to any securities of the Companies;
(n) enter into any negotiations, arrangements, understanding or agreements (whether written or oral) withSection 5, or advise, finance, assist, knowingly encourage or seek to knowingly persuade or encourage, any Third Party person to take any action or make any statement in connection with respect to any of the foregoing, or make any investment in or enter into any arrangement with any other person that engages, or offers or proposes to engage, in any of the foregoingsuch action, or otherwise take or cause any action or make any statement inconsistent with any of the foregoing; or
(o) take any action challenging . Notwithstanding anything to the validity or enforceability of contrary contained in this Agreement, the Legion Parties shall not be prohibited or make restricted from: (A) communicating privately with the Board or any officer or director of Nutrisystem, in the manner set forth for communicating with the Company in the Company Policies applicable to all shareholders, regarding any matter, so long as such communications are not intended to, and would not reasonably be expected to, require any public disclosure of such communications by any of the Legion Parties or their respective Affiliates, Nutrisystem or its Affiliates or any Third Party, subject in any case to any confidentiality obligations to Nutrisystem of any such director or officer and applicable law, rules or regulations; (B) taking any action necessary to comply with any law, rule or regulation or any action required by any governmental or regulatory authority or stock exchange that has, or may have, jurisdiction over any Legion Party or its Affiliates, provided that a breach by the Legion Parties of this Agreement is not the cause of the applicable requirement; (C) privately communicating to any of their potential investors or investors publicly available information regarding Nutrisystem, provided such communications are not otherwise reasonably expected to be publicly disclosed; or (D) disclosing its bona fide voting intention on any Extraordinary Transaction pursuant to Rule 14a-1(l)(2)(iv) under the Exchange Act.
(b) The provisions of this Section 5 shall not limit in any respect the actions of any director of Nutrisystem in his or her capacity as such, recognizing that such actions are subject to such director’s fiduciary duties to Nutrisystem and its stockholders and the Company Policies (it being understood and agreed that neither the Legion Parties nor any of their Affiliates shall seek to do indirectly through the New Directors (or any Replacement) anything that would be prohibited if done by any of the Legion Parties or their Affiliates). The provisions of this Section 5 shall also not prevent the Legion Parties from freely voting their shares Common Stock (except as otherwise provided in Section 2 hereto).
(c) At any time the Legion Parties cease to have a Schedule 13D filed with the SEC and during the Standstill Period, upon reasonable written notice from Nutrisystem pursuant to Section 17 hereof, the Legion Parties shall promptly provide Nutrisystem with information regarding the amount of the securities of Nutrisystem (a) beneficially owned by each such entity or individual, (b) with respect to which the Legion Parties have (i) any direct or indirect rights or options to acquire or (ii) any economic exposure through any derivative securities or contracts or instruments in any way advance related to the price of such securities, or (c) with respect to which any request Legion Party has hedged its position by selling covered call options. This ownership information provided to Nutrisystem will be kept strictly confidential unless required to be disclosed pursuant to applicable laws and regulations, any subpoena, legal process or proposal that the Company, FSFR, the Company Board other legal requirement or the FSFR Board amend, modify in connection with any litigation or waive any provision of similar proceedings in connection with this Agreement.
Appears in 2 contracts
Samples: Cooperation Agreement (Nutri System Inc /De/), Cooperation Agreement (Legion Partners Asset Management, LLC)
Standstill. Effective from the date of this Agreement and continuing until the later of the certification of votes for the Company 2017 Annual Meeting of Stockholders or the certification of votes for the FSFR (as defined below) 2017 Annual Meeting of Stockholders (the “Standstill Period”), except to the extent expressly permitted by the terms of this Agreement, none of the Sellers shall, and Sellers 4.1 The Shareholder shall cause their respective controlled Affiliates not tonot, directly or indirectly, in and shall not authorize or permit any mannerof its Representatives (to the extent acting on behalf of the Shareholder) or Controlled Affiliates, alone directly or in concert with othersindirectly, to, without the prior written consent of, or waiver by, Mylan:
(a) solicitsubject to Section 4.3, acquire, offer or seek to acquire, agree to acquire or make a proposal (including any private proposal to Mylan or the Board of Directors) to acquire, by purchase or otherwise (including through the acquisition of Beneficial Ownership), any securities (including any Equity Securities or Voting Securities) or Derivative Instruments, or knowingly encourage direct or indirect rights to acquire any securities (including any Equity Securities or Voting Securities) or Derivative Instruments, of Mylan or any Subsidiary or Affiliate of Mylan or any successor to or Person in Control of Mylan, or any securities (including any Equity Securities or Voting Securities) or indebtedness convertible into or exchangeable for any such securities or indebtedness; provided that the Shareholder may acquire, offer or seek to acquire, agree to acquire or make a proposal to acquire Ordinary Shares (and any securities (including any Equity Securities or Voting Securities) convertible into or exchangeable for Ordinary Shares) and Derivative Instruments with respect to Ordinary Shares, if, immediately following such acquisition, the collective Beneficial Ownership of Ordinary Shares of the Shareholder and its Controlled Affiliates, as a group, would not exceed the Standstill Level;
(b) participate in any acquisition of assets or business of Mylan or its Subsidiaries or Affiliates (other than an acquisition initiated by Mylan or its Representatives);
(c) conduct, fund or otherwise become a participant in any “tender offer” (as such term is used in Regulation 14D under the Exchange Act) involving Equity Securities, Voting Securities or any securities convertible into, or exercisable or exchangeable for, Equity Securities or Voting Securities, in each case not approved by the Board of Directors;
(d) otherwise act in concert with others to seek to control or influence the Board of Directors or shareholders of Mylan or its Subsidiaries or Affiliates; provided that nothing in this clause (d) shall preclude the Shareholder or its Representatives from engaging in discussions with Mylan or its Representatives;
(e) make or join or become a participant (as defined in Instruction 3 to Item 4 of Schedule 14A under the Exchange Act) in (or in any way engage in knowingly encourage) any solicitation of, any proxies or consents or become a “participant” in a “solicitation,” directly or indirectly, of “proxies” (as such terms are defined in Regulation 14A under as promulgated by the Securities Exchange Act of 1934, as amended (the “Exchange Act”SEC) of proxies or consents to vote any Voting Securities or any of the voting securities of any Subsidiaries or Affiliates of Mylan (including, without limitation, any solicitation of consents that seeks to call a special meeting of stockholders or including through action by encouraging or participating in any “withhold” or similar campaignwritten consent), in each case, with respect to securities of the Company or Fifth Street Senior Floating Rate Corp. (“FSFR”) or any securities convertible or exchangeable into or exercisable for any such securities (collectively, “securities of the Companies”);
(b) make any proposal for consideration by stockholders at any annual or special meeting of the stockholders of the Company or FSFR, whether pursuant to Rule 14a-8 under the Exchange Act, either such company’s constituent documents or otherwise;
(c) otherwise knowingly advise, encourage, support, instruct advise or influence any person with respect to any of the matters covered by this Section 3.1 or Person with respect to the voting or disposition of any securities of the Companies at any annual Mylan or special meeting of stockholders of the Company its Subsidiaries or FSFR, except in accordance with Section 3.4, or seek to do so;
(d) agree, attempt, seek or propose to deposit any securities of the Companies in any voting trust or similar arrangement, or subject any securities of the Companies to any arrangement or agreement with respect to the voting thereof, except in accordance with Section 3.4;
(e) knowingly seek or encourage any person to submit nominations in furtherance of a “contested solicitation” or take other action for the election or removal of directors with respect to the Company or FSFR, including any action that is intended to, or is reasonably likely to result in, the replacement of the investment advisor of the Company or FSFR, or a modification to the terms or conditions of either the Company’s or FSFR’s investment advisory agreementAffiliates;
(f) form, join in or in make any way participate in a partnership, limited partnership, syndicate or other group, including, without limitation, a group as defined under Section 13(d) of the Exchange Act (except such participation related to the reasonable unwinding of any such group currently existing as of the date of this Agreement) with any person who is not identified on Schedule I hereto (any such person, a “Third Party”), public announcement with respect to any securities of the Companies or take any other action that would interfere with the ability of Sellers to vote in accordance with this Agreement;
(g) make any disclosure, communication, announcement or statement regarding any intent, purpose, plan or proposal with respect to the FSC Board of Directors (the “Company Board”), the Company investment advisor or the terms and conditions of the Company’s investment advisory agreement, the FSFR Board of Directors (the “FSFR Board”), the FSFR investment advisor or the terms and conditions of FSFR’s investment advisory agreement, the Company, FSFRto, or the management, policies solicit or affairs of either the Company or FSFRsubmit a proposal for, or with respect to this Agreementoffer, that is inconsistent with the provisions of this Agreement;
(h) effect or seek to effect, offer or propose to effect, cause or participate in, or in any way assist or facilitate any other person to effect or seek, offer propose or propose to effect indicate an interest in (with or participate in, without conditions) any tender or exchange offer, merger, consolidation, acquisition, scheme, arrangement, business combination, “tender offer” (as such term is used in Regulation 14D under the Exchange Act), recapitalization, reorganization, sale purchase or acquisition license of a material portion of the assets, liquidationproperties, dissolutionsecurities or indebtedness of Mylan or any Subsidiary or Affiliate of Mylan, extraordinary dividend, significant share repurchase or other similar extraordinary transaction involving the CompanyMylan, FSFR or either any Subsidiary of their investment advisors, or any of their subsidiaries or joint ventures Mylan or any of their respective securities (each, an “Extraordinary Transaction”)or indebtedness, or make any statement or disclosure regarding any intent, purpose, plan or proposal with respect to any Extraordinary Transaction or this Agreement that is inconsistent with the provisions of this Agreement, including any intent, purpose, plan or proposal that is conditioned on, or would require waiver, amendment, nullification or invalidation of, any provision of this Agreement or take any action that could require the Company or FSFR to make any public disclosure relating to any such intent, purpose, plan, proposal or condition;
(i) (i) call or seek to call or request the calling of any meeting of stockholders at either the Company or FSFR, including by written consent, (ii) seek, alone or in concert with others, representation on, or nominate any candidate to, the Company Board or the FSFR Board, (iii) seek the removal of any member of the Company Board or the FSFR Board, (iv) seek, alone or in concert with others, or support any Third Party in seeking, to replace the investment advisor of the Company or the investment advisor of FSFR, (v) solicit consents from the Company or FSFR stockholders or otherwise act or seek to act by written consent, (vi) conduct a referendum of the Company or FSFR stockholders or (vii) make a request for any stockholders list or any other books and records in Sellers’ capacity as a Company or FSFR stockholder;
(j) purchase or cause to be purchased or otherwise acquire or agree to acquire beneficial ownership of any securities issued by the Company or FSFR, or any securities convertible into or exchangeable for securities issued by the Company or FSFR;
(k) sell, offer to sell, give, pledge, grant a security interest in, encumber, assign, grant any option for the sale of or otherwise transfer or dispose of (each, a “Transfer”) any securities issued by the Company and/or any securities convertible into or exchangeable for securities issued by the Company, unless any Buyer fails to timely perform each of its obligations under Section 1.2(b), Section 1.3(c) and/or Section 1.3(d)(i) of this Agreement;
(l) institute, solicit or join, as a party, or knowingly assist any other person in instituting, soliciting or joining, any litigation, arbitration or other proceeding against the Company or FSFR or any of their current or former directors or officers (including derivative actions), other than (i) litigation to enforce the provisions of this Agreement and (ii) counterclaims with respect to any proceeding initiated by, or on behalf of, a party to this Agreement or FSFR against Sellers;
(m) enter into or engage in any short sale or purchase, sale or grant of any option, warrant, derivative, convertible security, stock appreciation right or other similar right (including, without limitation, any put or call option or swap transaction) with respect to or having any measurement relating to any securities of the Companies;
(n) enter into any discussions, negotiations, arrangements, understanding understandings or agreements (whether written or oral) withwith any other Person regarding any of the foregoing (other than, in each case, a transaction initiated by Mylan or its Representatives);
(g) call or seek to call a meeting of shareholders of Mylan or initiate any shareholder proposal for action of Mylan’s shareholders, or adviseseek election or appointment to or to place a representative on the Board of Directors or seek the removal or suspension of any director from the Board of Directors;
(h) form, financejoin, assistbecome a member or in any way participate in a Group (other than with the Shareholder or any of its Controlled Affiliates) with respect to the securities of Mylan or any of its Subsidiaries or Affiliates;
(i) deposit any Voting Securities in a voting trust or similar Contract or subject any Voting Securities to any voting agreement, seek pooling arrangement or similar arrangement or Contract, or grant any proxy with respect to any Voting Securities (in each case, other than (i) with the Shareholder or any of its Affiliates or (ii) in accordance with Section 3.1);
(j) make any proposal or disclose any plan, or cause or authorize any of its and their directors, officers, employees, agents, advisors and other Representatives to make any proposal or disclose any plan on its or their behalf, inconsistent with the foregoing restrictions;
(k) exercise any rights granted to shareholders of Mylan pursuant to Sections 2:110 or 2:114a of the Dutch Civil Code (Burgerlijk Wetboek) and the corresponding provisions of the Articles of Association;
(l) knowingly persuade take any action or encouragecause or authorize any of its and their directors, any Third Party officers, employees, agents, advisors and other Representatives to take any action on its or make their behalf that would reasonably be expected to require Mylan or any statement in connection with of its Subsidiaries or Affiliates to publicly disclose any of the foregoingforegoing actions or the possibility of a business combination, merger or make any investment other type of transaction or matter described in this Section 4.1;
(m) knowingly advise, assist, arrange or otherwise enter into any arrangement discussions or arrangements with any other person that engages, or offers or proposes third party with respect to engage, in any of the foregoing, or otherwise take or cause any action or make any statement inconsistent with any of the foregoing; or
(on) take any action challenging directly or indirectly, contest the validity or enforceability of this Agreementof, or make seek an amendment, waiver, suspension or in any way advance any request or proposal that the Companytermination of, FSFR, the Company Board or the FSFR Board amend, modify or waive any provision of this AgreementSection 4.1 (including this subclause) or Section 3.1 (whether by legal action or otherwise).
4.2 The Shareholder shall not, and shall not authorize or permit any of its Affiliates, directors, officers, employees, agents, advisors or other Representatives to, directly or indirectly, make, in each case to Mylan or to a third party, any proposal, statement or inquiry, or disclose any intention, plan or arrangement, whether written or oral, inconsistent with the provisions of this Section 4, or request Mylan or any of its Affiliates, directors, officers, employees, agents, advisors or other Representatives, directly or indirectly, to amend, waive, suspend or terminate any provision of this Section 4 (including this sentence). A breach of this Section 4 by any Affiliate, director, officer, employee, agent, advisor or other Representative of the Shareholder shall be deemed a breach by the Shareholder of this Section 4.
4.3 The prohibition in Section 4.1(a) shall not apply to the activities of the Shareholder or any of its Affiliates in connection with:
(a) acquisitions made as a result of a stock split, stock dividend, reorganization, recapitalization, reclassification, combination, exchange of shares or other like change approved or recommended by the Board of Directors; or
(b) acquisitions made in connection with a transaction or series of related transactions in which the Shareholder or any of its Affiliates acquires a previously unaffiliated business entity that Beneficially Owns Equity Securities, Voting Securities or Derivative Instruments, or any securities convertible into, or exercisable or exchangeable for, Equity Securities, Voting Securities or Derivative Instruments, at the time of the consummation of such acquisition, provided that in connection with any such acquisition, the Shareholder or such applicable Affiliate, as the case may be, (i) either (A) causes such entity to divest the Equity Securities, Voting Securities or Derivative Instruments, or any securities convertible into, or exercisable or exchangeable for, Equity Securities, Voting Securities or Derivative Instruments, Beneficially Owned by the acquired entity within a period of one hundred twenty (120) calendar days after the date of the consummation of such acquisition or (B) divests the Equity Securities, Voting Securities or Derivative Instruments, or any other securities convertible into, or exercisable or exchangeable for, Equity Securities, Voting Securities or Derivative Instruments, Beneficially Owned by the Shareholder and its Affiliates, in an amount so that the Shareholder and its Affiliates, together with such acquired business entity, shall not, acting alone or as part of a Group, directly or indirectly, Beneficially Own a number of Ordinary Shares in excess of the Standstill Level following such acquisition, and (ii) if any general meeting of the shareholders of Mylan is held prior to the disposition thereof, votes such Ordinary Shares or other Voting Securities on each matter presented at any such general meeting of the shareholders of Mylan in accordance with the recommendation of the Board of Directors or any applicable committee thereof.
Appears in 2 contracts
Samples: Shareholder Agreement (Mylan N.V.), Shareholder Agreement (Mylan N.V.)
Standstill. Effective from (a) During the date of this Agreement and continuing until Standstill Period, the later Stockholder agrees that, without the prior written consent of the certification of votes for Company, the Company 2017 Annual Meeting of Stockholders Stockholder will not and will not permit its Affiliates to:
(i) purchase or the certification of votes for the FSFR (as defined below) 2017 Annual Meeting of Stockholders (the “Standstill Period”), except to the extent expressly permitted by the terms of this Agreement, none of the Sellers shall, and Sellers shall cause their respective controlled Affiliates not tootherwise acquire, directly or indirectly, in any manner, alone or in concert with others:
(a) solicit, agree or knowingly encourage offer to purchase or in any way engage in any solicitation ofotherwise acquire, any proxies or consents or become a “participant” in a “solicitation,” directly or indirectlyshares of Common Stock if, as such terms are defined a result thereof, the Stockholder, together with its Affiliates and with any members of a Group in Regulation 14A under which the Securities Exchange Act Stockholder or any of 1934its Affiliates is a member, as amended (the “Exchange Act”) of proxies or consents (including, without limitation, any solicitation of consents that seeks to call a special meeting of stockholders or by encouraging or participating in any “withhold” or similar campaign)would, in each casethe aggregate, with respect to securities beneficially own shares of Common Stock representing more than the 19.9% of the Company or Fifth Street Senior Floating Rate Corp. (“FSFR”) or any securities convertible or exchangeable into or exercisable for any such securities (collectively, “securities of the Companies”)Common Stock;
(bii) make initiate or propose any proposal matter for consideration by stockholders at any annual or special meeting a vote of the stockholders of the Company or FSFR"solicit," or become a "participant," directly or indirectly, whether pursuant to Rule 14a-8 in any "solicitation" of proxies (as such terms are defined under the Exchange Act) from any holder of shares of capital stock of the Company in connection with any vote or other action on any matter or agree or announce its intention to vote with any Person undertaking a "solicitation" or seek to advise, either such company’s constituent documents encourage or otherwiseinfluence any Person with respect to the voting of any voting securities of the Company;
(ciii) knowingly advisemake any public announcement, encouragepublic proposal or public offer with respect to any Extraordinary Transaction involving the Company or its securities or assets;
(iv) enter into any discussions, supportnegotiations, instruct arrangements or influence understandings with any person third party with respect to any of the matters covered by this Section 3.1 foregoing, or otherwise form, join or in any way participate in a Group in connection with respect to the voting or disposition of any securities of the Companies at any annual or special meeting of stockholders of the Company or FSFR, except in accordance with Section 3.4, or seek to do soforegoing;
(dv) agree, attempt, seek or propose to deposit any securities shares of the Companies Common Stock in any voting trust or similar arrangement, or subject any securities the shares of the Companies Common Stock to any arrangement or agreement with respect to the voting thereof, except in accordance with Section 3.4;
(e) knowingly seek or encourage any person to submit nominations in furtherance of a “contested solicitation” or take other action for the election or removal of directors with respect to the Company or FSFR, including any action that is intended to, or is reasonably likely to result in, the replacement of the investment advisor of the Company or FSFR, or a modification to the terms or conditions of either the Company’s or FSFR’s investment advisory agreement;
(f) form, join in or in any way participate in a partnership, limited partnership, syndicate or other group, including, without limitation, a group as defined under Section 13(d) of the Exchange Act (except such participation related to the reasonable unwinding of any such group currently existing shares of Common Stock except as of the date of this Agreement) with any person who is not identified on Schedule I hereto (any such person, a “Third Party”), with respect to any securities of the Companies or take any other action that would interfere with the ability of Sellers to vote in accordance with this Agreement;
(g) make any disclosure, communication, announcement or statement regarding any intent, purpose, plan or proposal with respect to the FSC Board of Directors (the “Company Board”), the Company investment advisor or the terms and conditions of the Company’s investment advisory agreement, the FSFR Board of Directors (the “FSFR Board”), the FSFR investment advisor or the terms and conditions of FSFR’s investment advisory agreement, the Company, FSFR, or the management, policies or affairs of either the Company or FSFR, or with respect to this Agreement, that is inconsistent with the provisions of this Agreement;
(h) effect or seek to effect, offer or propose to effect, cause or participate in, or in any way assist or facilitate any other person to effect or seek, offer or propose to effect or participate in, any tender or exchange offer, merger, consolidation, acquisition, scheme, arrangement, business combination, recapitalization, reorganization, sale or acquisition of assets, liquidation, dissolution, extraordinary dividend, significant share repurchase or other extraordinary transaction involving the Company, FSFR or either of their investment advisors, or any of their subsidiaries or joint ventures or any of their respective securities (each, an “Extraordinary Transaction”), or make any statement or disclosure regarding any intent, purpose, plan or proposal with respect to any Extraordinary Transaction or this Agreement that is inconsistent with the provisions of this Agreement, including any intent, purpose, plan or proposal that is conditioned on, or would require waiver, amendment, nullification or invalidation of, any provision of this Agreement or take any action that could require the Company or FSFR to make any public disclosure relating to any such intent, purpose, plan, proposal or condition;
(i) (i) call or seek to call or request the calling of any meeting of stockholders at either the Company or FSFR, including by written consent, (ii) seek, alone or in concert with others, representation on, or nominate any candidate to, the Company Board or the FSFR Board, (iii) seek the removal of any member of the Company Board or the FSFR Board, (iv) seek, alone or in concert with others, or support any Third Party in seeking, to replace the investment advisor of the Company or the investment advisor of FSFR, (v) solicit consents from the Company or FSFR stockholders or otherwise act or seek to act by written consent, (vi) conduct a referendum of the Company or FSFR stockholders or (vii) make a request for any stockholders list or any other books and records in Sellers’ capacity as a Company or FSFR stockholder;
(j) purchase or cause to be purchased or otherwise acquire or agree to acquire beneficial ownership of any securities issued by the Company or FSFR, or any securities convertible into or exchangeable for securities issued by the Company or FSFR;
(k) sell, offer to sell, give, pledge, grant a security interest in, encumber, assign, grant any option for the sale of or otherwise transfer or dispose of (each, a “Transfer”) any securities issued by the Company and/or any securities convertible into or exchangeable for securities issued by the Company, unless any Buyer fails to timely perform each of its obligations under Section 1.2(b), Section 1.3(c) and/or Section 1.3(d)(i) of this Agreement;
(l) institute, solicit or join, as a party, or knowingly assist any other person in instituting, soliciting or joining, any litigation, arbitration or other proceeding against the Company or FSFR or any of their current or former directors or officers (including derivative actions), other than (i) litigation to enforce the provisions of this Agreement and (ii) counterclaims with respect to any proceeding initiated by, or on behalf of, a party to this Agreement or FSFR against Sellers;
(m) enter into or engage in any short sale or purchase, sale or grant of any option, warrant, derivative, convertible security, stock appreciation right or other similar right (including, without limitation, any put or call option or swap transaction) with respect to or having any measurement relating to any securities of the Companies;
(n) enter into any negotiations, arrangements, understanding or agreements (whether written or oral) with, or advise, finance, assist, seek to knowingly persuade or encourage, any Third Party to take any action or make any statement in connection with any of the foregoing, or make any investment in or enter into any arrangement with any other person that engages, or offers or proposes to engage, in any of the foregoing, or otherwise take or cause any action or make any statement inconsistent with any of the foregoingset forth hereunder; or
(oA) take any action challenging the validity request permission or enforceability of this Agreement, or make or participate in any way advance effort to do any of the foregoing or (B) request or proposal that the Company, FSFR, the Company Board or the FSFR Board amend, modify to amend or waive any provision of this Agreementparagraph, in a manner which would require public disclosure of such action under applicable law. Stockholder will reasonably promptly advise the Company of any proposal made to it by a third party with respect to any of the foregoing.
(b) Nothing contained in this Section shall be deemed in any way to prohibit or limit any transactions in the ordinary course of business between the Company and any of its Subsidiaries or between the Stockholder and any of its Affiliates or between the Stockholder and its Affiliates and their portfolio companies.
Appears in 2 contracts
Samples: Standstill Agreement (Manugistics Group Inc), Standstill Agreement (Warburg Pincus Private Equity Viii L P)
Standstill. Effective (a) Subject to Section 3.9(c), from and after the date of this Agreement and continuing until the later earlier of the certification of votes for the Company 2017 Annual Meeting of Stockholders or the certification of votes for the FSFR (i) a Termination Event (as defined belowin the SPV LPA) 2017 Annual Meeting of Stockholders and (ii) in the “Standstill Period”), except to event that the extent expressly permitted transactions contemplated by the terms Purchase Agreement are not consummated, the termination of this Agreementthe Purchase Agreement in accordance with its terms, none of the Sellers shall, and Sellers shall cause Investor Parties nor any of their respective controlled Affiliates not toor any Searchlight Affiliate shall, directly or indirectly, offer to acquire or acquire (or propose, agree or seek permission, to acquire), of record or beneficially, by purchase, sale or otherwise, any securities, assets or indebtedness of the Company or any of its controlled Affiliates, or rights or options to acquire interests in any mannersecurities, alone assets or in concert with others:
(a) solicit, indebtedness of the Company or knowingly encourage or in any way engage in any solicitation of, any proxies or consents or become a “participant” in a “solicitation,” directly or indirectly, as such terms are defined in Regulation 14A under the Securities Exchange Act of 1934, as amended (the “Exchange Act”) of proxies or consents (including, without limitation, any solicitation of consents that seeks to call a special meeting of stockholders or by encouraging or participating in any “withhold” or similar campaign)its controlled Affiliates, in each case, with respect to securities without the prior written approval of the Company or Fifth Street Senior Floating Rate Corp. (“FSFR”Independent Directors; provided, however, that for the avoidance of doubt, this Section 3.9(a) shall not apply to the transactions contemplated by the Purchase Agreement and the Investor’s acquisition of the Interests pursuant thereto; and provided, further, that this Section 3.9(a) shall not apply to any Person constituting a portfolio investment of Searchlight or any securities convertible of its Affiliates, so long as such Person is not acting at the direction of Searchlight or exchangeable into its Affiliate (other than such portfolio investment).
(b) Notwithstanding Section 3.9(a), nothing in this Section 3.9 shall restrict any of the Investor Parties from making any proposal regarding a possible transaction involving the Company directly to the Board.
(c) Notwithstanding Section 3.9(a), but subject to Section 3.5(b), nothing in this Section 3.9 shall restrict any of the Investor Parties from undertaking a transaction or exercisable submitting an offer for a transaction involving the Company that would qualify as a “Rule 13e-3” transaction (as defined under the Exchange Act); provided, further, that nothing herein shall prohibit Searchlight or any of its Affiliates from providing financing for or otherwise participating in such securities a transaction.
(d) The restrictions set forth in Section 3.9(a) shall not apply if and for so long as any Rights Plan has been adopted by the Company and/or the Board and remains in effect.
(e) Notwithstanding anything to the contrary herein, nothing in this Agreement shall restrict or prevent Xxxx or any Searchlight Director, from, consistent with the past practices of the Company, (i) receiving from the Company any equity or equity-based compensation in connection with such Person’s service as a member of the Board or any committee(s) thereof, or (ii) exercising any rights or options in connection with such equity or equity-based compensation (collectively, “securities of the CompaniesDirector Equity”);
(b) make any proposal for consideration by stockholders at any annual or special meeting of the stockholders of the Company or FSFR, whether pursuant to Rule 14a-8 under the Exchange Act, either such company’s constituent documents or otherwise;
(c) knowingly advise, encourage, support, instruct or influence any person with respect to any of the matters covered by this Section 3.1 or with respect to the voting or disposition of any securities of the Companies at any annual or special meeting of stockholders of the Company or FSFR, except in accordance with Section 3.4, or seek to do so;
(d) agree, attempt, seek or propose to deposit any securities of the Companies in any voting trust or similar arrangement, or subject any securities of the Companies to any arrangement or agreement with respect to the voting thereof, except in accordance with Section 3.4;
(e) knowingly seek or encourage any person to submit nominations in furtherance of a “contested solicitation” or take other action for the election or removal of directors with respect to the Company or FSFR, including any action that is intended to, or is reasonably likely to result in, the replacement of the investment advisor of the Company or FSFR, or a modification to the terms or conditions of either the Company’s or FSFR’s investment advisory agreement;
(f) form, join in or in any way participate in a partnership, limited partnership, syndicate or other group, including, without limitation, a group as defined under Section 13(d) of the Exchange Act (except such participation related to the reasonable unwinding of any such group currently existing as of the date of this Agreement) with any person who is not identified on Schedule I hereto (any such person, a “Third Party”), with respect to any securities of the Companies or take any other action that would interfere with the ability of Sellers to vote in accordance with this Agreement;
(g) make any disclosure, communication, announcement or statement regarding any intent, purpose, plan or proposal with respect to the FSC Board of Directors (the “Company Board”), the Company investment advisor or the terms and conditions of the Company’s investment advisory agreement, the FSFR Board of Directors (the “FSFR Board”), the FSFR investment advisor or the terms and conditions of FSFR’s investment advisory agreement, the Company, FSFR, or the management, policies or affairs of either the Company or FSFR, or with respect to this Agreement, that is inconsistent with the provisions of this Agreement;
(h) effect or seek to effect, offer or propose to effect, cause or participate in, or in any way assist or facilitate any other person to effect or seek, offer or propose to effect or participate in, any tender or exchange offer, merger, consolidation, acquisition, scheme, arrangement, business combination, recapitalization, reorganization, sale or acquisition of assets, liquidation, dissolution, extraordinary dividend, significant share repurchase or other extraordinary transaction involving the Company, FSFR or either of their investment advisors, or any of their subsidiaries or joint ventures or any of their respective securities (each, an “Extraordinary Transaction”), or make any statement or disclosure regarding any intent, purpose, plan or proposal with respect to any Extraordinary Transaction or this Agreement that is inconsistent with the provisions of this Agreement, including any intent, purpose, plan or proposal that is conditioned on, or would require waiver, amendment, nullification or invalidation of, any provision of this Agreement or take any action that could require the Company or FSFR to make any public disclosure relating to any such intent, purpose, plan, proposal or condition;
(i) (i) call or seek to call or request the calling of any meeting of stockholders at either the Company or FSFR, including by written consent, (ii) seek, alone or in concert with others, representation on, or nominate any candidate to, the Company Board or the FSFR Board, (iii) seek the removal of any member of the Company Board or the FSFR Board, (iv) seek, alone or in concert with others, or support any Third Party in seeking, to replace the investment advisor of the Company or the investment advisor of FSFR, (v) solicit consents from the Company or FSFR stockholders or otherwise act or seek to act by written consent, (vi) conduct a referendum of the Company or FSFR stockholders or (vii) make a request for any stockholders list or any other books and records in Sellers’ capacity as a Company or FSFR stockholder;
(j) purchase or cause to be purchased or otherwise acquire or agree to acquire beneficial ownership of any securities issued by the Company or FSFR, or any securities convertible into or exchangeable for securities issued by the Company or FSFR;
(k) sell, offer to sell, give, pledge, grant a security interest in, encumber, assign, grant any option for the sale of or otherwise transfer or dispose of (each, a “Transfer”) any securities issued by the Company and/or any securities convertible into or exchangeable for securities issued by the Company, unless any Buyer fails to timely perform each of its obligations under Section 1.2(b), Section 1.3(c) and/or Section 1.3(d)(i) of this Agreement;
(l) institute, solicit or join, as a party, or knowingly assist any other person in instituting, soliciting or joining, any litigation, arbitration or other proceeding against the Company or FSFR or any of their current or former directors or officers (including derivative actions), other than (i) litigation to enforce the provisions of this Agreement and (ii) counterclaims with respect to any proceeding initiated by, or on behalf of, a party to this Agreement or FSFR against Sellers;
(m) enter into or engage in any short sale or purchase, sale or grant of any option, warrant, derivative, convertible security, stock appreciation right or other similar right (including, without limitation, any put or call option or swap transaction) with respect to or having any measurement relating to any securities of the Companies;
(n) enter into any negotiations, arrangements, understanding or agreements (whether written or oral) with, or advise, finance, assist, seek to knowingly persuade or encourage, any Third Party to take any action or make any statement in connection with any of the foregoing, or make any investment in or enter into any arrangement with any other person that engages, or offers or proposes to engage, in any of the foregoing, or otherwise take or cause any action or make any statement inconsistent with any of the foregoing; or
(o) take any action challenging the validity or enforceability of this Agreement, or make or in any way advance any request or proposal that the Company, FSFR, the Company Board or the FSFR Board amend, modify or waive any provision of this Agreement.
Appears in 2 contracts
Samples: Stockholders Agreement (InterMedia Partners VII LP), Stockholders Agreement (Hemisphere Media Group, Inc.)
Standstill. Effective from (i) For a period of five (5) years beginning on the date of this Agreement and continuing until the later of the certification of votes for the Company 2017 Annual Meeting of Stockholders or the certification of votes for the FSFR (as defined below) 2017 Annual Meeting of Stockholders hereof (the “Standstill Period”), except to the extent expressly permitted by the terms of this Agreement, none of the Sellers shallGE shall not, and Sellers shall cause their respective controlled its Representatives and Affiliates not to, directly or indirectly, in any manner, alone or in concert with others:
(a) solicit, or knowingly encourage or in any way engage in any solicitation of, any proxies or consents or become a “participant” in a “solicitation,” directly or indirectly, as such terms are defined in Regulation 14A under the Securities Exchange Act of 1934, as amended (the “Exchange Act”) of proxies or consents (including, without limitation, any solicitation of consents that seeks to call a special meeting of stockholders or by encouraging or participating in any “withhold” or similar campaign), in each case, with respect to securities of the Company or Fifth Street Senior Floating Rate Corp. (“FSFR”) or any securities convertible or exchangeable into or exercisable for any such securities (collectively, “securities of the Companies”);
(b) make any proposal for consideration by stockholders at any annual or special meeting of the stockholders of the Company or FSFR, whether pursuant to Rule 14a-8 under the Exchange Act, either such company’s constituent documents or otherwise;
(c) knowingly advise, encourage, support, instruct or influence any person with respect to any of the matters covered by this Section 3.1 or with respect to the voting or disposition of any securities of the Companies at any annual or special meeting of stockholders of the Company or FSFR, except in accordance with Section 3.4, or seek to do so;
(d) agree, attempt, seek or propose to deposit any securities of the Companies in any voting trust or similar arrangement, or subject any securities of the Companies to any arrangement or agreement with respect to the voting thereof, except in accordance with Section 3.4;
(e) knowingly seek or encourage any person to submit nominations in furtherance of a “contested solicitation” or take other action for the election or removal of directors with respect to the Company or FSFR, including any action that is intended to, or is reasonably likely to result in, the replacement of the investment advisor of the Company or FSFR, or a modification to the terms or conditions of either the Company’s or FSFR’s investment advisory agreement;
(f) form, join in or in any way participate in a partnership, limited partnership, syndicate or other group, including, without limitation, a group as defined under Section 13(d) of the Exchange Act (except such participation related to the reasonable unwinding of any such group currently existing as of the date of this Agreement) with any person who is not identified on Schedule I hereto (any such person, a “Third Party”), with respect to any securities of the Companies or take any other action that would interfere with the ability of Sellers to vote in accordance with this Agreement;
(g) make any disclosure, communication, announcement or statement regarding any intent, purpose, plan or proposal with respect to the FSC Board of Directors (the “Company Board”), the Company investment advisor or the terms and conditions of the Company’s investment advisory agreement, the FSFR Board of Directors (the “FSFR Board”), the FSFR investment advisor or the terms and conditions of FSFR’s investment advisory agreement, the Company, FSFR, or the management, policies or affairs of either the Company or FSFR, or with respect to this Agreement, that is inconsistent with the provisions of this Agreement;
(h) effect or seek to effect, offer or propose to effect, cause or participate in, or in any way assist or facilitate any other person to effect or seek, offer or propose (whether publicly or otherwise) to effect, or announce any intention to effect or otherwise participate inin or knowingly encourage, any acquisition of Company Common Stock (including in derivative form) or any tender or exchange offer, merger, consolidation, acquisition, scheme, arrangement, business combination, recapitalization, reorganization, sale or acquisition of assets, liquidation, dissolution, extraordinary dividend, significant share repurchase combination or other extraordinary similar transaction involving the Company, FSFR or either of their investment advisors, Company or any of their subsidiaries or joint ventures its Subsidiaries that would result in GE and its Affiliates beneficially owning more than 65% of the voting power of the outstanding shares of Company Common Stock; provided that GE shall be permitted to make a private proposal to the Non-GE Directors that would not reasonably be expected to require the Company or any of their respective securities its Affiliates to make any public announcement or other disclosure. The foregoing shall not prohibit:
(eachA) GE or any of its Representatives or Affiliates from acquiring Company Common Stock by way of stock splits, an “Extraordinary Transaction”stock dividends, reclassifications, recapitalizations or other distributions by the Company to all holders of Company Common Stock on a pro rata basis;
(B) acquisitions by GE or any of its Representatives or Affiliates of Company Common Stock (x) approved by the Conflicts Committee or (y) pursuant to the exercise of the preemptive rights set forth in Section 4.3; or
(C) GE or any of its Affiliates from acquiring Company Common Stock pursuant to and in accordance with the terms of the Exchange Agreement and Section 3.03 or Section 3.05 of the Newco LLC Agreement.
(ii) Without limiting Section 4.2(b)(i), during the Standstill Period GE shall not, and shall cause its Representatives and Affiliates not to, directly or indirectly, in any manner, (A) effect or seek, offer or propose (whether publicly or otherwise) to effect, or announce any intention to effect or otherwise participate in, any “solicitation” of “proxies” (as such terms are used in the proxy rules of the SEC) to vote any Company Common Stock in connection with the election of the Non-GE Directors or the removal of any Non-GE Director, (B) solicit, knowingly encourage or knowingly facilitate, directly or indirectly, any third party to engage in any such solicitation, (C) make any public statement (or disclosure regarding statement to an Other Stockholder) in support of any intentsuch third-party solicitation or against any of the Company’s director nominees, purpose(D) form, plan join or proposal in any way participate in a “group” (within the meaning of Section 13(d)(3) of the Exchange Act) with respect to any Extraordinary Transaction Company Common Stock or this Agreement that is inconsistent with the provisions of this Agreement(E) call, including any intent, purpose, plan or proposal that is conditioned on, or would require waiver, amendment, nullification or invalidation of, any provision of this Agreement or take any action that could require the Company or FSFR to make any public disclosure relating to any such intent, purpose, plan, proposal or condition;
(i) (i) call or seek to call or request the calling of, or otherwise seek or assist in the calling of any a special meeting of the stockholders at either of the Company or FSFR, including by written consentCompany; provided that subclauses (D) and (E) shall only apply if taken in furtherance of the actions described in subclauses (A), (iiB) seek, alone or in concert with others, representation on, or nominate any candidate to, the Company Board or the FSFR Board, and (iii) seek the removal of any member of the Company Board or the FSFR Board, (iv) seek, alone or in concert with others, or support any Third Party in seeking, to replace the investment advisor of the Company or the investment advisor of FSFR, (v) solicit consents from the Company or FSFR stockholders or otherwise act or seek to act by written consent, (vi) conduct a referendum of the Company or FSFR stockholders or (vii) make a request for any stockholders list or any other books and records in Sellers’ capacity as a Company or FSFR stockholder;
(j) purchase or cause to be purchased or otherwise acquire or agree to acquire beneficial ownership of any securities issued by the Company or FSFR, or any securities convertible into or exchangeable for securities issued by the Company or FSFR;
(k) sell, offer to sell, give, pledge, grant a security interest in, encumber, assign, grant any option for the sale of or otherwise transfer or dispose of (each, a “Transfer”) any securities issued by the Company and/or any securities convertible into or exchangeable for securities issued by the Company, unless any Buyer fails to timely perform each of its obligations under Section 1.2(b), Section 1.3(c) and/or Section 1.3(d)(iC) of this Agreement;
(l) institute, solicit or join, as a party, or knowingly assist any other person in instituting, soliciting or joining, any litigation, arbitration or other proceeding against the Company or FSFR or any of their current or former directors or officers (including derivative actions), other than (i) litigation to enforce the provisions of this Agreement and subsection (ii) counterclaims with respect to any proceeding initiated by, or on behalf of, a party to this Agreement or FSFR against Sellers;
(m) enter into or engage in any short sale or purchase, sale or grant of any option, warrant, derivative, convertible security, stock appreciation right or other similar right (including, without limitation, any put or call option or swap transaction) with respect to or having any measurement relating to any securities of the Companies;
(n) enter into any negotiations, arrangements, understanding or agreements (whether written or oral) with, or advise, finance, assist, seek to knowingly persuade or encourage, any Third Party to take any action or make any statement in connection with any of the foregoing, or make any investment in or enter into any arrangement with any other person that engages, or offers or proposes to engage, in any of the foregoing, or otherwise take or cause any action or make any statement inconsistent with any of the foregoing; or
(o) take any action challenging the validity or enforceability of this Agreement, or make or in any way advance any request or proposal that the Company, FSFR, the Company Board or the FSFR Board amend, modify or waive any provision of this Agreement).
Appears in 2 contracts
Samples: Shareholder Agreement, Shareholder Agreement (Baker Hughes a GE Co)
Standstill. Effective from (a) The Stock Purchase Agreement, dated as of July 1, 1995, between the Company and Pharmacia & Upjohn S.p.A. is hereby amended ab initio, effective as of the date thereof, to delete therefrom Section 5.5 thereof in its entirety.
(b) Prior to the earliest of this Agreement and continuing until (i) the later occurrence of the certification an Event of votes for the Company 2017 Annual Meeting of Stockholders or the certification of votes for the FSFR Default (as defined below) 2017 Annual Meeting of Stockholders (in the “Standstill Period”Credit Agreement), except to (ii) the extent expressly permitted commencement of a tender offer by any Person, other than Pharmacia & Upjohn, Inc. or any of its wholly owned subsidiaries, for shares of Common Stock, and (iii) July 1, 2000, unless specifically requested in advance by the terms Company's Board of this AgreementDirectors, none neither the Purchaser nor any of the Sellers shallPurchasers' Affiliates will, and Sellers shall cause their respective controlled the Purchaser and its Affiliates will not assist or encourage others (including by providing financing) to, directly or indirectly, in any manner, alone acquire or in concert with others:
(a) solicit, or knowingly encourage or in any way engage in any solicitation of, any proxies or consents or become a “participant” in a “solicitation,” directly or indirectly, as such terms are defined in Regulation 14A under the Securities Exchange Act of 1934, as amended (the “Exchange Act”) of proxies or consents (including, without limitation, any solicitation of consents that seeks to call a special meeting of stockholders or by encouraging or participating in any “withhold” or similar campaign), in each case, with respect to securities of the Company or Fifth Street Senior Floating Rate Corp. (“FSFR”) or any securities convertible or exchangeable into or exercisable for any such securities (collectively, “securities of the Companies”);
(b) make any proposal for consideration by stockholders at any annual or special meeting of the stockholders of the Company or FSFR, whether pursuant to Rule 14a-8 under the Exchange Act, either such company’s constituent documents or otherwise;
(c) knowingly advise, encourage, support, instruct or influence any person with respect to any of the matters covered by this Section 3.1 or with respect to the voting or disposition of any securities of the Companies at any annual or special meeting of stockholders of the Company or FSFR, except in accordance with Section 3.4, or seek to do so;
(d) agree, attemptoffer, seek or propose to deposit any securities of the Companies in any voting trust or similar arrangement, or subject any securities of the Companies to any arrangement or agreement with respect to the voting thereof, except in accordance with Section 3.4;
(e) knowingly seek or encourage any person to submit nominations in furtherance of a “contested solicitation” or take other action for the election or removal of directors with respect to the Company or FSFR, including any action that is intended to, or is reasonably likely to result in, the replacement of the investment advisor of the Company or FSFR, or a modification to the terms or conditions of either the Company’s or FSFR’s investment advisory agreement;
(f) form, join in or in any way participate in a partnership, limited partnership, syndicate or other group, including, without limitation, a group as defined under Section 13(d) of the Exchange Act (except such participation related to the reasonable unwinding of any such group currently existing as of the date of this Agreement) with any person who is not identified on Schedule I hereto (any such person, a “Third Party”), with respect to any securities of the Companies or take any other action that would interfere with the ability of Sellers to vote in accordance with this Agreement;
(g) make any disclosure, communication, announcement or statement regarding any intent, purpose, plan or proposal with respect to the FSC Board of Directors (the “Company Board”), the Company investment advisor or the terms and conditions of the Company’s investment advisory agreement, the FSFR Board of Directors (the “FSFR Board”), the FSFR investment advisor or the terms and conditions of FSFR’s investment advisory agreement, the Company, FSFR, or the management, policies or affairs of either the Company or FSFR, or with respect to this Agreement, that is inconsistent with the provisions of this Agreement;
(h) effect or seek to effect, offer or propose to effect, cause or participate in, or in any way assist or facilitate any other person to effect or seek, offer or propose to effect or participate in, any tender or exchange offer, merger, consolidation, acquisition, scheme, arrangement, business combination, recapitalization, reorganization, sale or acquisition of assets, liquidation, dissolution, extraordinary dividend, significant share repurchase or other extraordinary transaction involving the Company, FSFR or either of their investment advisors, or any of their subsidiaries or joint ventures or any of their respective securities (each, an “Extraordinary Transaction”), or make any statement or disclosure regarding any intent, purpose, plan or proposal with respect to any Extraordinary Transaction or this Agreement that is inconsistent with the provisions of this Agreement, including any intent, purpose, plan or proposal that is conditioned on, or would require waiver, amendment, nullification or invalidation of, any provision of this Agreement or take any action that could require the Company or FSFR to make any public disclosure relating to any such intent, purpose, plan, proposal or condition;
(i) (i) call or seek to call or request the calling of any meeting of stockholders at either the Company or FSFR, including by written consent, (ii) seek, alone or in concert with others, representation on, or nominate any candidate to, the Company Board or the FSFR Board, (iii) seek the removal of any member of the Company Board or the FSFR Board, (iv) seek, alone or in concert with others, or support any Third Party in seeking, to replace the investment advisor of the Company or the investment advisor of FSFR, (v) solicit consents from the Company or FSFR stockholders or otherwise act or seek to act by written consent, (vi) conduct a referendum of the Company or FSFR stockholders or (vii) make a request for any stockholders list or any other books and records in Sellers’ capacity as a Company or FSFR stockholder;
(j) purchase or cause to be purchased or otherwise acquire or agree to acquire beneficial ownership of any securities issued by the Company or FSFR, or any securities convertible into or exchangeable for securities issued by the Company or FSFR;
(k) sell, offer to sell, give, pledge, grant a security interest in, encumber, assign, grant any option for the sale of or otherwise transfer or dispose of (each, a “Transfer”) any securities issued by the Company and/or any securities convertible into or exchangeable for securities issued by the Company, unless any Buyer fails to timely perform each of its obligations under Section 1.2(b), Section 1.3(c) and/or Section 1.3(d)(i) of this Agreement;
(l) institute, solicit or join, as a party, or knowingly assist any other person in instituting, soliciting or joining, any litigation, arbitration or other proceeding against the Company or FSFR or any of their current or former directors or officers (including derivative actionsbut not limited to beneficial ownership (as defined in Rule 13d-3 under the 1934 Act), other than (i) litigation to enforce the provisions of this Agreement and (ii) counterclaims with respect to any proceeding initiated by, or on behalf of, a party to this Agreement or FSFR against Sellers;
(m) enter into or engage in any short sale or purchase, sale or grant of any option, warrant, derivative, convertible security, stock appreciation right or other similar right (including, without limitation, any put or call option or swap transaction) with respect to or having any measurement relating to any securities of the Companies;
(n) enter into any negotiations, arrangements, understanding or agreements (whether written or oral) with, or advise, finance, assist, seek to knowingly persuade or encourage, any Third Party to take any action or make any statement in connection with any of the foregoing, or make any investment in or enter into any arrangement discussions, negotiations, arrangements or understandings with any other person that engages, or offers or proposes Person with respect to engage, in any of the foregoing, or otherwise take or cause any action or make any statement inconsistent with any of the foregoing; or
provided that this Section 10.02(b) shall not prohibit (oi) take any action challenging the validity or enforceability acquisition by the Purchaser and its Affiliates of a number of shares of Common Stock which, taken together with the number of shares of Common Stock held by the Purchaser and its Affiliates as of the date of such acquisition, does not exceed 25% of the aggregate number of outstanding shares of Common Stock as of the date of this acquisition, (ii) the acquisition by the Purchaser or its Affiliates of shares of Common Stock pursuant to Section 2.03 of the Credit Agreement or upon exercise of any Warrants (as defined in the Credit Agreement), or make (iii) the acquisition by the Purchaser or its Affiliates of promissory notes pursuant to the Credit Agreement or any other securities pursuant to the Credit Documents (as defined in any way advance any request or proposal that the Company, FSFR, the Company Board or the FSFR Board amend, modify or waive any provision of this Credit Agreement).
Appears in 2 contracts
Samples: Equity Investment Agreement (Miravant Medical Technologies), Equity Investment Agreement (Pharmacia & Upjohn Inc)
Standstill. Effective from (a) From the date of this Agreement and continuing until the later expiration of the certification of votes for the Company 2017 Annual Meeting of Stockholders or the certification of votes for the FSFR Standstill Period (as defined below) 2017 Annual Meeting of Stockholders (the “Standstill Period”), except each Investor shall not, and shall cause its respective Affiliates, principals, directors, general partners, officers, employees and, to the extent expressly permitted by acting on its behalf or at its direction, agents and other representatives (collectively, the terms “Related Persons”) not to, directly or indirectly:
(i) make any announcement or proposal with respect to, or offer, seek, propose or indicate an interest in (A) any form of this Agreement, none business combination or acquisition or other transaction relating to assets or securities of the Sellers shallCompany or any of its subsidiaries, and Sellers (B) any form of restructuring, recapitalization or similar transaction with respect to the Company or any of its subsidiaries or (C) any form of tender or exchange offer for the Common Stock, whether or not such transaction involves a Change of Control of the Company (it being understood that the foregoing shall cause not prohibit Investors or their respective controlled Affiliates not tofrom acquiring securities of the Company by means other than a tender or exchange offer within the limitations set forth in Section 3(a)(iii));
(ii) engage in any solicitation of proxies or written consents to vote (or withhold the vote of) any voting securities of the Company, or conduct any binding or nonbinding referendum with respect to any voting securities of the Company, or assist or participate in any other way, directly or indirectly, in any manner, alone solicitation of proxies (or in concert written consents) with others:
(a) solicitrespect to any voting securities of the Company, or knowingly encourage or in any way engage in any solicitation of, any proxies or consents or otherwise become a “participant” in a “solicitation,” directly or indirectly, as such terms are defined in Instruction 3 of Item 4 of Schedule 14A and Rule 14a-1 of Regulation 14A 14A, respectively, under the Securities Exchange Act of 1934, as amended (the “Exchange Act”) of proxies or consents (including, without limitation, any solicitation of consents that seeks to call a special meeting of stockholders or by encouraging or participating in any “withhold” or similar campaign), in each case, with respect to vote (or withhold the vote of) any securities of the Company or Fifth Street Senior Floating Rate Corp. (“FSFR”) or any securities convertible or exchangeable into or exercisable for any such securities (collectively, “securities of the Companies”);Company;
(biii) make any proposal for consideration by stockholders at any annual purchase or special meeting of the stockholders of the Company otherwise acquire, or FSFRoffer, whether pursuant seek, propose or agree to acquire, ownership (including beneficial ownership as defined in Rule 14a-8 13d-3 under the Exchange Act) of any securities of the Company, either any direct or indirect rights or options to acquire any such companysecurities, any derivative securities or contracts or instruments in any way related to the price of shares of Common Stock of the Company, or any assets or liabilities of the Company (the taking of any such action, the “Acquisition”) such that after giving effect to such Acquisition, the Investor Group would beneficially own more than 15.0% of the Company’s constituent documents or otherwise;then outstanding shares of Common Stock.
(civ) knowingly seek to advise, encourage, support, instruct encourage or influence any person with respect to any of the matters covered by this Section 3.1 or with respect to the voting of (or execution of a written consent in respect of) acquisition of or disposition of any securities of the Companies Company;
(v) 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 Investor Group to any person or entity not (A) a party to this Agreement, (B) a member of the Board, (C) an officer of the Company or (D) an Affiliate of the Investor Group (any person or entity not set forth in clauses (A)—(D) shall be referred to as a “Third Party”) that would knowingly result in such Third Party, together with its Affiliates, owning, controlling or otherwise having any beneficial or other ownership interest representing in the aggregate in excess of 4.9% of the shares of Common Stock outstanding at such time;
(vi) take any annual action in support of or special meeting make any proposal or request that constitutes (or would constitute if taken): (A) advising, controlling, changing or influencing the Board or management of the Company, including any plans or proposals to change the voting standard with respect to director elections, number or term of directors or to fill any vacancies on the Board, except as set forth in this Agreement, (B) any change in the capitalization, stock repurchase programs and practices, or dividend policy of the Company, (C) any other change in the Company’s management, business, or corporate structure, (D) seeking to have the Company waive or make amendments or modifications to the Company’s Certificate of Incorporation, as amended (the “Charter”) or Amended and Restated By-laws (the “By-laws”), or other actions that may impede or facilitate the acquisition of control of the Company by any person, (E) causing a class of securities of the Company to be delisted from, or to cease to be authorized to be quoted on, any securities exchange or (F) causing a class of securities of the Company to become eligible for termination of registration pursuant to Section 12(g)(4) of the Exchange Act;
(vii) pursuant to Rule 14a-1(l)(2)(iv) under the Exchange Act communicate with stockholders of the Company or FSFR, except others;
(viii) engage in accordance any course of conduct with Section 3.4, the purpose of causing stockholders of the Company to vote contrary to the recommendation of the Board on any matter presented to the Company’s stockholders for their vote at any meeting of the Company’s stockholders or by written consent;
(ix) call or seek to do socall, or request the call of, alone or in concert with others, any meeting of stockholders, whether or not such a meeting is permitted by the Charter or By-laws, including any “town hall meeting”;
(dx) agree, attempt, seek or propose to deposit any securities of the Companies Common Stock in any voting trust or similar arrangement, or subject any securities of the Companies Common Stock to any arrangement or agreement with respect to the voting thereofof any Common Stock (other than any such voting trust, except arrangement or agreement solely among the Investors or any Affiliates thereof that is otherwise in accordance with Section 3.4;this Agreement);
(exi) knowingly seek act, seek, facilitate or encourage any person to submit nominations or proposals, whether in furtherance of a “contested solicitation” or take other action otherwise, for the appointment, election or removal of directors or otherwise with respect to the Company or FSFRseek, including facilitate, encourage or take any other action that is intended to, or is reasonably likely to result in, the replacement of the investment advisor of the Company or FSFR, or a modification with respect to the terms appointment, election or conditions removal of either the Company’s or FSFR’s investment advisory agreement;any directors;
(fxii) form, join in or in any other way participate in a partnership, limited partnership, syndicate or other any “group, including, without limitation, a group as defined under ” (within the meaning of Section 13(d13(d)(3) of the Exchange Act (except such participation related to the reasonable unwinding of any such group currently existing as of the date of this Agreementor otherwise) with any person who is not identified on Schedule I hereto (any such person, a “Third Party”), with respect to any securities of the Companies or take any other action that would interfere with the ability of Sellers to vote in accordance with this Agreement;
(g) make any disclosure, communication, announcement or statement regarding any intent, purpose, plan or proposal with respect to the FSC Board Company or its securities; provided, however, that nothing in this subsection (xii) shall limit the ability of Directors (an Affiliate of the Investor Group to join the “Company Board”)group” following the execution of this Agreement upon notice to the Company, so long as any such Affiliate first executed a joinder to this Agreement that binds such Affiliate to the Company investment advisor same degree as any other member of the Investor Group (it being understood that any Schedule 13D amendment or other legally required update or elective disclosure and the terms and conditions contents thereof may not violate any of the restrictions set forth in this Agreement);
(xiii) demand a copy of the Company’s investment advisory agreement, the FSFR Board of Directors (the “FSFR Board”), the FSFR investment advisor or the terms and conditions of FSFR’s investment advisory agreement, the Company, FSFR, or the management, policies or affairs of either the Company or FSFR, or with respect to this Agreement, that is inconsistent with the provisions of this Agreement;
(h) effect or seek to effect, offer or propose to effect, cause or participate in, or in any way assist or facilitate any other person to effect or seek, offer or propose to effect or participate in, any tender or exchange offer, merger, consolidation, acquisition, scheme, arrangement, business combination, recapitalization, reorganization, sale or acquisition of assets, liquidation, dissolution, extraordinary dividend, significant share repurchase or other extraordinary transaction involving the Company, FSFR or either of their investment advisors, or any of their subsidiaries or joint ventures or any of their respective securities (each, an “Extraordinary Transaction”), or make any statement or disclosure regarding any intent, purpose, plan or proposal with respect to any Extraordinary Transaction or this Agreement that is inconsistent with the provisions of this Agreement, including any intent, purpose, plan or proposal that is conditioned on, or would require waiver, amendment, nullification or invalidation of, any provision of this Agreement or take any action that could require the Company or FSFR to make any public disclosure relating to any such intent, purpose, plan, proposal or condition;
(i) (i) call or seek to call or request the calling of any meeting list of stockholders at either the Company or FSFR, including by written consent, (ii) seek, alone or in concert with others, representation on, or nominate any candidate to, the Company Board or the FSFR Board, (iii) seek the removal of any member of the Company Board or the FSFR Board, (iv) seek, alone or in concert with others, or support any Third Party in seeking, to replace the investment advisor of the Company or the investment advisor of FSFR, (v) solicit consents from the Company or FSFR stockholders or otherwise act or seek to act by written consent, (vi) conduct a referendum of the Company or FSFR stockholders or (vii) make a request for any stockholders list or any its other books and records in Sellers’ capacity as a Company or FSFR stockholder;records;
(jxiv) purchase or cause to be purchased or otherwise acquire or agree to acquire beneficial ownership of any securities issued by the Company or FSFRcommence, or any securities convertible into or exchangeable for securities issued by the Company or FSFR;
(k) sellencourage, offer to sell, give, pledge, grant a security interest in, encumber, assign, grant any option for the sale of or otherwise transfer or dispose of (each, a “Transfer”) any securities issued by the Company and/or any securities convertible into or exchangeable for securities issued by the Company, unless any Buyer fails to timely perform each of its obligations under Section 1.2(b), Section 1.3(c) and/or Section 1.3(d)(i) of this Agreement;
(l) institute, solicit or join, join as a party, or knowingly assist any other person in instituting, soliciting or joining, support any litigation, arbitration arbitration, derivative action in the name of the Company or any class action or other proceeding against the Company or FSFR or any of their its current or former directors officers or officers directors, in each case with the intent of circumventing the provisions of this Section 3, or take any action challenging the validity or enforceability of any of the provisions of this Section 3 or Section 25; provided, however, that the foregoing shall not prevent any Investor from (including derivative actions), other than (iA) bringing litigation against the Company to enforce the provisions of this Agreement and Agreement, (iiB) making counterclaims with respect to any proceeding initiated by, or on behalf of, the Company against an Investor or (C) responding to or complying with a party to this Agreement validly issued legal process that neither the Investor Group nor any of their Affiliates initiated, encouraged or FSFR against Sellers;facilitated;
(mxv) enter into make any request or engage submit any proposal to amend or waive the terms of this Section 3 other than through non-public communications with the Company that would not be reasonably expected to result in or involve public disclosure obligations for any short sale or purchase, sale or grant of any option, warrant, derivative, convertible security, stock appreciation right or other similar right (including, without limitation, any put or call option or swap transaction) with respect to or having any measurement relating to any securities of the Companies;party; or
(nxvi) enter into any discussions, negotiations, arrangements, understanding agreements or agreements (whether written understandings with any person or oral) withentity with respect to any action the Investors are prohibited from taking pursuant to this Section 3, or advise, finance, assist, knowingly encourage or seek to knowingly persuade any person or encourage, any Third Party entity to take any action or make any statement in connection with respect to any of the foregoing, or make any investment in or enter into any arrangement with any other person that engages, or offers or proposes to engage, in any of the foregoingsuch action, or otherwise take or cause any action or make any statement inconsistent with any of the foregoing. Notwithstanding the foregoing, nothing in this Section 3 or elsewhere in this Agreement shall prohibit or restrict the Investor Group from: (A) communicating privately with the Board or any executive officer or director of the Company, regarding any matter, so long as such communications are not intended to, and would not reasonably be expected to, require any public disclosure of such communications and subject to the confidentiality obligations to the Company of any such director or officer; or
(oB) take privately communicating to any action challenging of their potential investors or investors based on publicly available factual information regarding the validity Company consistent with prior practice in any of the Investors’ annual and quarterly investor letters, provided such communications are not in violation of applicable law, rules or enforceability regulations, understood by all parties to be private communications and not undertaken with the intent to circumvent Section 3 or Section 25 of this Agreement, or make or in ; (C) privately communicating with potential director candidates to serve on the Board; and (D) privately communicating to any way advance any request or proposal that the Company, FSFR, stockholders of the Company Board about factual matters concerning the Company in a manner that otherwise does not violate this Agreement; provided that such communications are not reasonably expected to be publicly disclosed and are understood by all parties to be private communications. None of the Investors nor any of their Affiliates shall seek to do directly or indirectly through any director of the FSFR Board amendCompany or other individual anything that would be prohibited under this Agreement if done by any of the Investors or their Affiliates or their agents and representatives.
(b) Notwithstanding anything set forth herein to the contrary, modify upon the public announcement by the Company of entry by the Company into a definitive agreement for a transaction that would constitute a Change of Control and which Change of Control transaction was not encouraged, facilitated or waive solicited by any provision of Investors or their Related Persons, this Agreement shall immediately and automatically terminate in its entirety and no party hereunder shall have any further rights or obligations under this Agreement; provided, however, no party shall be released from any breach of this Agreement that occurred prior to the termination of this Agreement.
(c) For purposes of this Agreement:
Appears in 2 contracts
Samples: Cooperation and Support Agreement (Landec Corp \Ca\), Cooperation and Support Agreement (Legion Partners Asset Management, LLC)
Standstill. Effective from The PL Capital Parties each agree that, for so long as Xxxxxxx X. Xxxxxxx (or, in the date of this Agreement and continuing until the later event of the certification death, disability or resignation of votes for Xx. Xxxxxxx, a substitute nominee of the Company 2017 Annual Meeting PL Capital Parties, whose substitution shall be subject to the approval of Stockholders the Ameriana Bancorp Board of Directors in its sole discretion, which approval shall not be unreasonably withheld or delayed) remains a director of Ameriana Bancorp or the certification of votes for the FSFR (as defined below) 2017 Annual Meeting of Stockholders Bank (the “Standstill Period”), except to the extent expressly permitted by the terms of this Agreement, none of the Sellers shall, they and Sellers shall cause their respective controlled Affiliates not to, directly affiliates or indirectly, in any manner, alone or in concert with others:
associates (a) solicit, or knowingly encourage or in any way engage in any solicitation of, any proxies or consents or become a “participant” in a “solicitation,” directly or indirectly, as such terms are defined in Regulation 14A under Rule 12b-2 promulgated pursuant to the Securities Exchange Act of 1934, as amended (the “Exchange Act”)) of proxies will not (and they will not assist or consents (includingencourage others to), directly or indirectly, in any manner, without limitationprior written approval of the Board of Directors of Ameriana Bancorp:
(i) acquire, offer to acquire, solicit an offer to sell or agree to acquire directly or indirectly, alone or in concert with others, by purchase, gift or otherwise, any solicitation direct or indirect beneficial ownership (within the meaning of consents that seeks to call a special meeting of stockholders Rule 13d-3 under the Exchange Act) or by encouraging any direct or participating indirect interest in any securities or direct or indirect rights, warrants or options to acquire, or securities convertible into or exchangeable for (collectively, an “withhold” or similar campaignAcquisition”), any securities of Ameriana Bancorp, such that as a result of such of such Acquisition, the PL Capital Parties would maintain beneficial ownership in each caseexcess of 9.99% of the outstanding shares of Ameriana Bancorp common stock;
(ii) make, or in any way participate in, directly or indirectly, alone or in concert with others, any “solicitation” of “proxies” to vote (as such terms are used in the proxy rules of the Securities and Exchange Commission promulgated pursuant to Section 14 of the Exchange Act) or seek to advise or influence in any manner whatsoever any person with respect to the voting of any voting securities of Ameriana Bancorp;
(iii) form, join or in any way participate in a “group” within the Company meaning of Section 13(d)(3) of the Exchange Act (other than a group involving solely the PL Capital Parties) with respect to any voting securities of Ameriana Bancorp (for the benefit of clarification and the avoidance of doubt, this provision shall not prohibit changes in the membership of the group involving the PL Capital Parties as long as any additional member(s) acknowledges and agrees to be bound by the terms of this Agreement);
(iv) acquire, offer to acquire or Fifth Street Senior Floating Rate Corp. agree to acquire, directly or indirectly, alone or in concert with others, by purchase, exchange or otherwise, (“FSFR”a) any of the assets, tangible and intangible, of Ameriana Bancorp or (b) direct or indirect rights, warrants or options to acquire any assets of Ameriana Bancorp;
(v) arrange, or in any way participate, directly or indirectly, in any financing (except for margin loan financing for shares beneficially owned) for the purchase of any securities or securities convertible or exchangeable into or exercisable for any such securities (collectively, “securities or assets of the Companies”)Ameriana Bancorp;
(bvi) make any proposal for consideration by stockholders at any annual otherwise act, alone or special meeting of the stockholders of the Company in concert with others, to seek to offer to Ameriana Bancorp or FSFR, whether pursuant to Rule 14a-8 under the Exchange Act, either such company’s constituent documents or otherwise;
(c) knowingly advise, encourage, support, instruct or influence any person with respect to any of the matters covered by this Section 3.1 or with respect to the voting or disposition of its stockholders any securities of the Companies at any annual or special meeting of stockholders of the Company or FSFR, except in accordance with Section 3.4, or seek to do so;
(d) agree, attempt, seek or propose to deposit any securities of the Companies in any voting trust or similar arrangement, or subject any securities of the Companies to any arrangement or agreement with respect to the voting thereof, except in accordance with Section 3.4;
(e) knowingly seek or encourage any person to submit nominations in furtherance of a “contested solicitation” or take other action for the election or removal of directors with respect to the Company or FSFR, including any action that is intended to, or is reasonably likely to result in, the replacement of the investment advisor of the Company or FSFR, or a modification to the terms or conditions of either the Company’s or FSFR’s investment advisory agreement;
(f) form, join in or in any way participate in a partnership, limited partnership, syndicate or other group, including, without limitation, a group as defined under Section 13(d) of the Exchange Act (except such participation related to the reasonable unwinding of any such group currently existing as of the date of this Agreement) with any person who is not identified on Schedule I hereto (any such person, a “Third Party”), with respect to any securities of the Companies or take any other action that would interfere with the ability of Sellers to vote in accordance with this Agreement;
(g) make any disclosure, communication, announcement or statement regarding any intent, purpose, plan or proposal with respect to the FSC Board of Directors (the “Company Board”), the Company investment advisor or the terms and conditions of the Company’s investment advisory agreement, the FSFR Board of Directors (the “FSFR Board”), the FSFR investment advisor or the terms and conditions of FSFR’s investment advisory agreement, the Company, FSFR, or the management, policies or affairs of either the Company or FSFR, or with respect to this Agreement, that is inconsistent with the provisions of this Agreement;
(h) effect or seek to effect, offer or propose to effect, cause or participate in, or in any way assist or facilitate any other person to effect or seek, offer or propose to effect or participate in, any tender or exchange offer, merger, consolidation, acquisition, scheme, arrangement, business combination, recapitalizationrestructuring, reorganization, sale recapitalization or acquisition of assets, liquidation, dissolution, extraordinary dividend, significant share repurchase similar transaction to or other extraordinary transaction involving the Company, FSFR with Ameriana Bancorp or either of their investment advisors, or any of their subsidiaries or joint ventures or any of their respective securities (each, an “Extraordinary Transaction”), or make any statement or disclosure regarding any intent, purpose, plan or proposal with respect to any Extraordinary Transaction or this Agreement that is inconsistent with the provisions of this Agreement, including any intent, purpose, plan or proposal that is conditioned on, or would require waiver, amendment, nullification or invalidation of, any provision of this Agreement or take any action that could require the Company or FSFR to make any public disclosure relating to any such intent, purpose, plan, proposal or condition;
(i) (i) call or seek to call or request the calling of any meeting of stockholders at either the Company or FSFR, including by written consent, (ii) otherwise seek, alone or in concert with others, representation onto control or change the management, Board of Directors or policies of Ameriana Bancorp or nominate any candidate to, person as a director of Ameriana Bancorp who is not nominated by the Company then incumbent directors (provided that if there is a vacancy on the Ameriana Bancorp Board of Directors the PL Capital Parties may submit suggestions on a confidential basis to the Ameriana Bancorp Board of Directors or the FSFR Board, (iii) seek the removal of any member Nominating and Governance Committee of the Company Ameriana Bancorp Board or of Directors for nominees to the FSFR Board, (iv) seek, alone or in concert with othersBoard of Directors pursuant to the nomination policy adopted by the Board of Directors), or support propose any Third Party in seeking, matter to replace be voted upon by the investment advisor stockholders of the Company or the investment advisor of FSFR, (v) solicit consents from the Company or FSFR stockholders or otherwise act or seek to act by written consent, (vi) conduct a referendum of the Company or FSFR stockholders or Ameriana Bancorp; or
(vii) make a request for any stockholders list or any other books and records in Sellers’ capacity as a Company or FSFR stockholder;
(j) purchase or cause announce an intention to be purchased or otherwise acquire or agree to acquire beneficial ownership of any securities issued by the Company or FSFRdo, or any securities convertible into or exchangeable for securities issued by the Company or FSFR;
(k) sell, offer to sell, give, pledge, grant a security interest in, encumber, assign, grant any option for the sale of or otherwise transfer or dispose of (each, a “Transfer”) any securities issued by the Company and/or any securities convertible into or exchangeable for securities issued by the Company, unless any Buyer fails to timely perform each of its obligations under Section 1.2(b), Section 1.3(c) and/or Section 1.3(d)(i) of this Agreement;
(l) institute, solicit or join, as a party, or knowingly assist any other person in instituting, soliciting or joining, any litigation, arbitration or other proceeding against the Company or FSFR or any of their current or former directors or officers (including derivative actions), other than (i) litigation to enforce the provisions of this Agreement and (ii) counterclaims with respect to any proceeding initiated by, or on behalf of, a party to this Agreement or FSFR against Sellers;
(m) enter into or engage in any short sale or purchase, sale or grant of any option, warrant, derivative, convertible security, stock appreciation right or other similar right (including, without limitation, any put or call option or swap transaction) with respect to or having any measurement relating to any securities of the Companies;
(n) enter into any negotiations, arrangements, understanding or agreements (whether written or oral) with, or advise, finance, assist, seek to knowingly persuade or encourage, any Third Party to take any action or make any statement in connection with any of the foregoing, or make any investment in or enter into any arrangement or understanding with any other person that engagesothers to do, or offers or proposes to engage, in any of the foregoingactions restricted or prohibited under clauses (i) through (vi) of this Paragraph 2, or publicly announce or disclose any request to be excused from any of the foregoing obligations of this Paragraph 2. At any Ameriana Bancorp annual meeting of stockholders during the Standstill Period, the PL Capital Parties agree (1) to vote all shares of Ameriana Bancorp they or any of them beneficially own in favor of the nominees for election or reelection as director of Ameriana Bancorp selected by the Board of Directors of Ameriana Bancorp and agree otherwise take to support such director candidates, and (2) with respect to any other proposal submitted by any Ameriana Bancorp stockholder to a vote of the Ameriana Bancorp stockholders, to vote all of the Ameriana Bancorp shares they beneficially own in accordance with the recommendation of the Ameriana Bancorp Board of Directors with respect to any such stockholder proposal. Notwithstanding anything in this Agreement to the contrary, nothing herein will be construed to limit or cause affect: (1) any action or make any statement inconsistent with any inaction by Xx. Xxxxxxx in his capacity as a member of Ameriana Bancorp’s Board of Directors or the Bank’s Board of Directors, provided he acts in good faith in the discharge of his fiduciary duties as a Board member; or (2) the ability of the foregoing; or
(o) take any action challenging PL Capital Parties to engage in discussions relating to the validity or enforceability topics listed in Paragraph 2 of this AgreementAgreement directly with the President and Chief Executive Officer of Ameriana Bancorp, or make or in any way advance any request or proposal that the Companyupon invitation, FSFR, the Company Board with other members of management or the FSFR board of directors of Ameriana Bancorp. The Standstill Period shall terminate following the 2014 annual meeting of stockholders if: (1) Xx. Xxxxxxx resigns as a member of the Board amendof Directors of Ameriana Bancorp; or (2) at the option of Ameriana Bancorp, modify or waive any provision if the beneficial ownership of this Agreementthe PL Capital Parties decreases below 5% of the outstanding shares of Ameriana Bancorp common stock.
Appears in 2 contracts
Samples: Standstill Agreement (PL Capital, LLC), Standstill Agreement (Ameriana Bancorp)
Standstill. Effective (a) Xxxxxxx Global agrees that, from the date of this Agreement and continuing until the later expiration of the certification of votes for the Company 2017 Annual Meeting of Stockholders or the certification of votes for the FSFR (as defined below) 2017 Annual Meeting of Stockholders (the “Standstill Period”), except to the extent expressly permitted by the terms neither it nor any of this Agreement, none of the Sellers shallits Affiliates or Associates will, and Sellers shall it will cause their respective controlled each of its Affiliates and Associates not to, directly or indirectly, in any manner, acting alone or in concert with others:
(ai) solicitengage in, or knowingly encourage or in any way engage in any solicitation of, any proxies or consents or become a “participant” in a “solicitation,” directly or indirectly, any “solicitation” (as defined in Rule 14a-l of Regulation 14A) of proxies (or written consents) or otherwise become a “participant in a solicitation” (as such terms are term is defined in Instruction 3 of Schedule 14A of Regulation 14A under the Securities Exchange Act of 1934, as amended (the “Exchange Act”) in opposition to the recommendation or proposal of proxies the Board, or consents recommend or request or induce or attempt to induce any other person to take any such actions, or seek to advise, encourage or influence any other person with respect to the voting of the Common Stock (including, without limitation, including any withholding from voting or any solicitation of consents that improperly seeks to call a special meeting of stockholders stockholders) or grant a proxy with respect to the voting of the Common Stock or other voting securities to any person other than to the Board or persons appointed as proxies by encouraging the Board;
(ii) form, join or participating in any way participate in any “withholdgroup” or similar campaign), in each case, (within the meaning of Section 13(d)(3) of the Exchange Act) with respect to securities the Common Stock (other than a “group” that includes all or some of the persons identified on Exhibit A, but does not include any other entities or persons not identified on Exhibit A as of the date hereof); provided, however, that nothing herein shall limit the ability of an Affiliate of Xxxxxxx Global to join the “group” following the execution of this Agreement, so long as any such Affiliate agrees to be bound by the terms and conditions of this Agreement;
(iii) deposit any Common Stock in any voting trust or subject any Common Stock to any arrangement or agreement with respect to the voting of any Common Stock, other than any such voting trust, arrangement or agreement solely among the members of Xxxxxxx Global and otherwise in accordance with this Agreement;
(iv) seek, or encourage any person, to submit nominations in furtherance of a “contested solicitation” for the election or removal of directors with respect to the Company or Fifth Street Senior Floating Rate Corp. (“FSFR”) seek, encourage or take any securities convertible other action with respect to the election or exchangeable into or exercisable for removal of any such securities (collectively, “securities of the Companies”)directors;
(bA) make any proposal for consideration by stockholders at any annual or special meeting of the stockholders of the Company, (B) make any offer or proposal (with or without conditions) with respect to any merger, acquisition, recapitalization, restructuring, disposition or other business combination involving the Company, or encourage, initiate or support any other third party in any such related activity or (C) make any public communication in opposition to any Company acquisition or FSFR, whether pursuant to Rule 14a-8 under disposition activity approved by the Exchange Act, either such company’s constituent documents or otherwiseBoard;
(cvi) knowingly seek, alone or in concert with others, representation on the Board, except as specifically contemplated in this Agreement;
(vii) vote for any nominee or nominees for election to the Board, other than those nominated or supported by the Board;
(viii) except as specifically provided in Section 1 of this Agreement, seek to place a representative or other Affiliate, Associate or nominee on the Board or seek the removal of any member of the Board, a change in the size, structure or composition of the Board or a change in executive officers of the Company, other than through non-public communications with the Company that would not reasonably be expected to trigger public disclosure obligations for any Party;
(ix) seek to advise, encourage, support, instruct support or influence any person with respect to any of the matters covered by this Section 3.1 or with respect to the voting or disposition of any securities of the Companies Company at any annual or special meeting of stockholders (other than such encouragement, support or influence that is consistent with Company’s management or the Board’s recommendation in connection with such matter);
(x) other than through action at the Board by the New Director acting in his capacity as a director of the Company, seek to call, or to request the call of, a special meeting of the Company’s stockholders, or make a request for a list of the Company’s stockholders or for any books and records of the Company;
(xi) seek, propose, or make any statement with respect to, or solicit, negotiate with, or provide any information to any person with respect to, a merger, consolidation, acquisition of control or other business combination, tender or exchange offer, purchase, sale or transfer of assets or securities, dissolution, liquidation, reorganization, change in capital structure, recapitalization, dividend, share repurchase or similar transaction involving the Company, its subsidiaries or its business, whether or not any such transaction involves a change of control of the Company (any of the transactions or FSFRevents described in this subsection (x), except in accordance with Section 3.4, or seek to do soa “Transaction”);
(dxii) agreeacquire, attemptannounce an intention to acquire, seek offer or propose to deposit acquire, or agree to acquire, directly or indirectly, by purchase or otherwise, beneficial ownership of any securities Common Stock of the Companies Company representing in any voting trust the aggregate (among Xxxxxxx Global and its Affiliates and Associates) in excess of 15% of the Company’s then outstanding Common Stock (other than securities issued or purchased by the Company pursuant to a stock split, stock dividend, stock repurchase or similar arrangement, or subject any securities of corporate action initiated by the Companies to any arrangement or agreement Company with respect to the voting thereof, except in accordance with Section 3.4;
(e) knowingly seek or encourage any person to submit nominations in furtherance of a “contested solicitation” or take other action for the election or removal of directors with respect to the Company or FSFR, including any action that is intended to, or is reasonably likely to result in, the replacement of the investment advisor of the Company or FSFR, or a modification to the terms or conditions of either the Company’s or FSFR’s investment advisory agreement;
(f) form, join in or in any way participate in a partnership, limited partnership, syndicate or other group, including, without limitation, a group as defined under Section 13(d) of the Exchange Act (except such participation related to the reasonable unwinding of any such group currently existing as of Common Stock beneficially owned by Xxxxxxx Global on the date of this Agreement);
(xiii) make any request or submit any proposal to amend the terms of this Agreement other than through non-public communications with the Company that would not reasonably be expected to trigger public disclosure obligations for any Party; or
(xiv) enter into any agreement, arrangement or understanding with a third party concerning any of the foregoing (other than this Agreement) or encourage or solicit any person who is not identified on Schedule I hereto (to undertake any such personof the foregoing activities; provided, a “Third Party”that, notwithstanding anything in this Section 3(a), it is understood and agreed that this Agreement shall not be deemed to prohibit (x) the New Director from engaging in any lawful act in his capacity as a director of the Company that is either expressly approved by the Board or required in order to comply with his fiduciary duties as a director of the Company or (y) solely with respect to any securities Transaction that has been approved by a majority of the Companies or take any other action that would interfere with the ability of Sellers to vote in accordance with this Agreement;
(g) make any disclosure, communication, announcement or statement regarding any intent, purpose, plan or proposal with respect to the FSC Board of Directors (the “Company Board”), the Company investment advisor or the terms and conditions of the Company’s investment advisory agreement, the FSFR Board of Directors (the “FSFR Board”), the FSFR investment advisor or the terms and conditions of FSFR’s investment advisory agreement, has been announced by the Company, FSFRXxxxxxx Global from making public statements, engaging in discussions with other shareholders, soliciting proxies or voting any shares or proxies consistent with the management, policies or affairs of either the Company or FSFR, or Board’s recommendation in connection with respect to such matter.
(b) As used in this Agreement, that is inconsistent with the provisions of this Agreement;
(h) effect or seek to effect, offer or propose to effect, cause or participate in, or in any way assist or facilitate any other person to effect or seek, offer or propose to effect or participate in, any tender or exchange offer, merger, consolidation, acquisition, scheme, arrangement, business combination, recapitalization, reorganization, sale or acquisition of assets, liquidation, dissolution, extraordinary dividend, significant share repurchase or other extraordinary transaction involving the Company, FSFR or either of their investment advisors, or any of their subsidiaries or joint ventures or any of their respective securities (each, an “Extraordinary Transaction”), or make any statement or disclosure regarding any intent, purpose, plan or proposal with respect to any Extraordinary Transaction or this Agreement that is inconsistent with the provisions of this Agreement, including any intent, purpose, plan or proposal that is conditioned on, or would require waiver, amendment, nullification or invalidation of, any provision of this Agreement or take any action that could require the Company or FSFR to make any public disclosure relating to any such intent, purpose, plan, proposal or condition;:
(i) the terms “Affiliate” and “Associate” shall have the respective meanings set forth in Rule 12b-2 promulgated by the SEC under the Exchange Act; provided that neither “Affiliate” nor “Associate” shall include (iA) call any person that is a publicly held corporation or seek to call organization and is an Affiliate or request Associate solely by reason of the calling fact that a principal or representative of any meeting of stockholders at either the Company or FSFR, including by written consent, (ii) seek, alone or in concert with others, representation on, or nominate any candidate to, the Company Board or the FSFR Board, (iii) seek the removal of any Xxxxxxx Global serves as a member of the Company Board board of directors or the FSFR Boardsimilar governing body of such corporation or organization, (ivB) seek, alone any principal or representative of Xxxxxxx Global solely in concert with others, or support any Third Party in seeking, to replace the investment advisor of the Company or the investment advisor of FSFR, (v) solicit consents from the Company or FSFR stockholders or otherwise act or seek to act by written consent, (vi) conduct a referendum of the Company or FSFR stockholders or (vii) make a request for any stockholders list or any other books and records in Sellers’ its capacity as a Company member of the board of directors or FSFR stockholder;
similar governing body of a publicly held corporation or organization, or (jC) purchase any corporation or cause to be purchased organization that is an Associate of a person solely because such person, directly or otherwise acquire indirectly, is the beneficial owner of 10% or agree to acquire beneficial ownership more of any securities issued by the Company or FSFR, or any securities convertible into or exchangeable for securities issued by the Company or FSFR;
(k) sell, offer to sell, give, pledge, grant a security interest in, encumber, assign, grant any option for the sale class of or otherwise transfer or dispose of (each, a “Transfer”) any securities issued by the Company and/or any securities convertible into or exchangeable for securities issued by the Company, unless any Buyer fails to timely perform each of its obligations under Section 1.2(b), Section 1.3(c) and/or Section 1.3(d)(i) of this Agreement;
(l) institute, solicit or join, as a party, or knowingly assist any other person in instituting, soliciting or joining, any litigation, arbitration or other proceeding against the Company or FSFR or any of their current or former directors or officers (including derivative actions), other than (i) litigation to enforce the provisions of this Agreement and (ii) counterclaims with respect to any proceeding initiated by, or on behalf of, a party to this Agreement or FSFR against Sellers;
(m) enter into or engage in any short sale or purchase, sale or grant of any option, warrant, derivative, convertible security, stock appreciation right or other similar right (including, without limitation, any put or call option or swap transaction) with respect to or having any measurement relating to any equity securities of the Companiessuch corporation or organization and is not an Affiliate of such person;
(n) enter into any negotiations, arrangements, understanding or agreements (whether written or oral) with, or advise, finance, assist, seek to knowingly persuade or encourage, any Third Party to take any action or make any statement in connection with any of the foregoing, or make any investment in or enter into any arrangement with any other person that engages, or offers or proposes to engage, in any of the foregoing, or otherwise take or cause any action or make any statement inconsistent with any of the foregoing; or
(o) take any action challenging the validity or enforceability of this Agreement, or make or in any way advance any request or proposal that the Company, FSFR, the Company Board or the FSFR Board amend, modify or waive any provision of this Agreement.
Appears in 2 contracts
Samples: Shareholder Agreement (Tenzing Global Management, LLC), Agreement (Care.com Inc)
Standstill. Effective from (i) For a period of five (5) years beginning on the date of this Agreement and continuing until the later of the certification of votes for the Company 2017 Annual Meeting of Stockholders or the certification of votes for the FSFR (as defined below) 2017 Annual Meeting of Stockholders hereof (the “Standstill Period”), except to the extent expressly permitted by the terms of this Agreement, none of the Sellers shallGE shall not, and Sellers shall cause their respective controlled its Representatives and Affiliates not to, directly or indirectly, in any manner, alone or in concert with others:
(a) solicit, or knowingly encourage or in any way engage in any solicitation of, any proxies or consents or become a “participant” in a “solicitation,” directly or indirectly, as such terms are defined in Regulation 14A under the Securities Exchange Act of 1934, as amended (the “Exchange Act”) of proxies or consents (including, without limitation, any solicitation of consents that seeks to call a special meeting of stockholders or by encouraging or participating in any “withhold” or similar campaign), in each case, with respect to securities of the Company or Fifth Street Senior Floating Rate Corp. (“FSFR”) or any securities convertible or exchangeable into or exercisable for any such securities (collectively, “securities of the Companies”);
(b) make any proposal for consideration by stockholders at any annual or special meeting of the stockholders of the Company or FSFR, whether pursuant to Rule 14a-8 under the Exchange Act, either such company’s constituent documents or otherwise;
(c) knowingly advise, encourage, support, instruct or influence any person with respect to any of the matters covered by this Section 3.1 or with respect to the voting or disposition of any securities of the Companies at any annual or special meeting of stockholders of the Company or FSFR, except in accordance with Section 3.4, or seek to do so;
(d) agree, attempt, seek or propose to deposit any securities of the Companies in any voting trust or similar arrangement, or subject any securities of the Companies to any arrangement or agreement with respect to the voting thereof, except in accordance with Section 3.4;
(e) knowingly seek or encourage any person to submit nominations in furtherance of a “contested solicitation” or take other action for the election or removal of directors with respect to the Company or FSFR, including any action that is intended to, or is reasonably likely to result in, the replacement of the investment advisor of the Company or FSFR, or a modification to the terms or conditions of either the Company’s or FSFR’s investment advisory agreement;
(f) form, join in or in any way participate in a partnership, limited partnership, syndicate or other group, including, without limitation, a group as defined under Section 13(d) of the Exchange Act (except such participation related to the reasonable unwinding of any such group currently existing as of the date of this Agreement) with any person who is not identified on Schedule I hereto (any such person, a “Third Party”), with respect to any securities of the Companies or take any other action that would interfere with the ability of Sellers to vote in accordance with this Agreement;
(g) make any disclosure, communication, announcement or statement regarding any intent, purpose, plan or proposal with respect to the FSC Board of Directors (the “Company Board”), the Company investment advisor or the terms and conditions of the Company’s investment advisory agreement, the FSFR Board of Directors (the “FSFR Board”), the FSFR investment advisor or the terms and conditions of FSFR’s investment advisory agreement, the Company, FSFR, or the management, policies or affairs of either the Company or FSFR, or with respect to this Agreement, that is inconsistent with the provisions of this Agreement;
(h) effect or seek to effect, offer or propose to effect, cause or participate in, or in any way assist or facilitate any other person to effect or seek, offer or propose (whether publicly or otherwise) to effect, or announce any intention to effect or otherwise participate inin or knowingly encourage, any acquisition of Company Common Stock (including in derivative form) or any tender or exchange offer, merger, consolidation, acquisition, scheme, arrangement, business combination, recapitalization, reorganization, sale or acquisition of assets, liquidation, dissolution, extraordinary dividend, significant share repurchase combination or other extraordinary similar transaction involving the Company, FSFR or either of their investment advisors, Company or any of their subsidiaries or joint ventures its Subsidiaries that would result in GE and its Affiliates beneficially owning more than 65% of the voting power of the outstanding shares of Company Common Stock; provided that GE shall be permitted to make a private proposal to the Non-GE Directors that would not reasonably be expected to require the Company or any of their respective securities its Affiliates to make any public announcement or other disclosure. The foregoing shall not prohibit:
(eachA) GE or any of its Representatives or Affiliates from acquiring Company Common Stock by way of stock splits, an “Extraordinary Transaction”stock dividends, reclassifications, recapitalizations or other distributions by the Company to all holders of Company Common Stock on a pro rata basis;
(B) acquisitions by GE or any of its Representatives or Affiliates of Company Common Stock (A) approved by the Conflicts Committee or (B) pursuant to the exercise of the preemptive rights set forth in Section 4.3; or
(C) GE or any of its Affiliates from acquiring Company Common Stock pursuant to and in accordance with the terms of the Exchange Agreement and Section 3.03 or Section 3.05 of the Newco LLC Agreement.
(ii) Without limiting Section 4.2(b)(i), during the Standstill Period GE shall not, and shall cause its Representatives and Affiliates not to, directly or indirectly, in any manner, (A) effect or seek, offer or propose (whether publicly or otherwise) to effect, or announce any intention to effect or otherwise participate in, any “solicitation” of “proxies” (as such terms are used in the proxy rules of the SEC) to vote any Company Common Stock in connection with the election of the Non-GE Directors or the removal of any Non-GE Director, (B) solicit, knowingly encourage or knowingly facilitate, directly or indirectly, any third party to engage in any such solicitation, (C) make any public statement (or disclosure regarding statement to an Other Stockholder) in support of any intentsuch third-party solicitation or against any of the Company’s director nominees, purpose(D) form, plan join or proposal in any way participate in a “group” (within the meaning of Section 13(d)(3) of the Exchange Act) with respect to any Extraordinary Transaction Company Common Stock or this Agreement that is inconsistent with the provisions of this Agreement(E) call, including any intent, purpose, plan or proposal that is conditioned on, or would require waiver, amendment, nullification or invalidation of, any provision of this Agreement or take any action that could require the Company or FSFR to make any public disclosure relating to any such intent, purpose, plan, proposal or condition;
(i) (i) call or seek to call or request the calling of, or otherwise seek or assist in the calling of any a special meeting of the stockholders at either of the Company or FSFR, including by written consentCompany; provided that subclauses (D) and (E) shall only apply if taken in furtherance of the actions described in subclauses (A), (iiB) seek, alone or in concert with others, representation on, or nominate any candidate to, the Company Board or the FSFR Board, and (iii) seek the removal of any member of the Company Board or the FSFR Board, (iv) seek, alone or in concert with others, or support any Third Party in seeking, to replace the investment advisor of the Company or the investment advisor of FSFR, (v) solicit consents from the Company or FSFR stockholders or otherwise act or seek to act by written consent, (vi) conduct a referendum of the Company or FSFR stockholders or (vii) make a request for any stockholders list or any other books and records in Sellers’ capacity as a Company or FSFR stockholder;
(j) purchase or cause to be purchased or otherwise acquire or agree to acquire beneficial ownership of any securities issued by the Company or FSFR, or any securities convertible into or exchangeable for securities issued by the Company or FSFR;
(k) sell, offer to sell, give, pledge, grant a security interest in, encumber, assign, grant any option for the sale of or otherwise transfer or dispose of (each, a “Transfer”) any securities issued by the Company and/or any securities convertible into or exchangeable for securities issued by the Company, unless any Buyer fails to timely perform each of its obligations under Section 1.2(b), Section 1.3(c) and/or Section 1.3(d)(iC) of this Agreement;
(l) institute, solicit or join, as a party, or knowingly assist any other person in instituting, soliciting or joining, any litigation, arbitration or other proceeding against the Company or FSFR or any of their current or former directors or officers (including derivative actions), other than (i) litigation to enforce the provisions of this Agreement and subsection (ii) counterclaims with respect to any proceeding initiated by, or on behalf of, a party to this Agreement or FSFR against Sellers;
(m) enter into or engage in any short sale or purchase, sale or grant of any option, warrant, derivative, convertible security, stock appreciation right or other similar right (including, without limitation, any put or call option or swap transaction) with respect to or having any measurement relating to any securities of the Companies;
(n) enter into any negotiations, arrangements, understanding or agreements (whether written or oral) with, or advise, finance, assist, seek to knowingly persuade or encourage, any Third Party to take any action or make any statement in connection with any of the foregoing, or make any investment in or enter into any arrangement with any other person that engages, or offers or proposes to engage, in any of the foregoing, or otherwise take or cause any action or make any statement inconsistent with any of the foregoing; or
(o) take any action challenging the validity or enforceability of this Agreement, or make or in any way advance any request or proposal that the Company, FSFR, the Company Board or the FSFR Board amend, modify or waive any provision of this Agreement).
Appears in 2 contracts
Samples: Transaction Agreement and Plan of Merger (Baker Hughes Inc), Transaction Agreement and Plan of Merger (General Electric Co)
Standstill. Effective (a) Subject to Section 7(b), Recipient hereby agrees that, for a period of one year from the date of this Agreement and continuing until the later of the certification of votes for the Company 2017 Annual Meeting of Stockholders or the certification of votes for the FSFR (as defined below) 2017 Annual Meeting of Stockholders hereof (the “Standstill Period”), except Recipient and its subsidiaries and other controlled affiliates will not (and neither Recipient nor its subsidiaries and other controlled affiliates will knowingly assist, or provide or arrange financing to the extent expressly permitted by the terms of this Agreementor for, none of the Sellers shall, and Sellers shall cause their respective controlled Affiliates not others in order to), directly or indirectly, in any manner, acting alone or in concert with others:
, unless specifically invited in writing in advance by the Company: (ai) solicitacquire or agree to acquire, make an offer to the Company to acquire or propose to the Company or publicly propose to acquire (or request permission from the Company to do so) ownership (including beneficial ownership as defined in Rule 13d-3 under the Exchange Act) of any material assets or businesses of the Company or any securities issued by the Company, or knowingly encourage any option or other right to acquire such ownership (including from a third party); (ii) publicly seek to influence or control the management or the policies of the Company; (iii) propose to the Company or publicly propose to obtain representation on the board of directors (or any committee thereof) of the Company; (iv) solicit or participate in any way engage in any the solicitation of, of any proxies or consents or become a “participant” in a “solicitation,” directly or indirectly, as such terms are defined in Regulation 14A under the Securities Exchange Act of 1934, as amended (the “Exchange Act”) of proxies or consents (including, without limitation, any solicitation of consents that seeks to call a special meeting of stockholders or by encouraging or participating in any “withhold” or similar campaign), in each case, with respect to securities of the Company or Fifth Street Senior Floating Rate Corp. (“FSFR”) or any securities convertible or exchangeable into or exercisable for any such securities (collectively, “securities of the Companies”);
(b) make any proposal for consideration by stockholders at any annual or special meeting of the stockholders of the Company or FSFR, whether pursuant to Rule 14a-8 under the Exchange Act, either such company’s constituent documents or otherwise;
(c) knowingly advise, encourage, support, instruct or influence any person with respect to any of the matters covered by this Section 3.1 or with respect to the voting or disposition of any securities of the Companies at any annual or special meeting of stockholders of the Company or FSFR, except in accordance with Section 3.4, or seek to do so;
(d) agree, attempt, seek or propose to deposit any securities of the Companies in any voting trust or similar arrangement, or subject any securities of the Companies to any arrangement or agreement with respect to the voting thereof, except in accordance with Section 3.4;
(e) knowingly seek or encourage any person to submit nominations in furtherance of a “contested solicitation” or take other action for the election or removal of directors with respect to the Company or FSFR, including any action that is intended to, or is reasonably likely to result in, the replacement of the investment advisor of the Company or FSFR, or a modification to the terms or conditions of either the Company’s or FSFR’s investment advisory agreement;
(f) form, join in or in any way participate in a partnership, limited partnership, syndicate or other group, including, without limitation, a group as defined under Section 13(d) of the Exchange Act (except such participation related to the reasonable unwinding of any such group currently existing as of the date of this Agreement) with any person who is not identified on Schedule I hereto (any such person, a “Third Party”), with respect to any securities of the Companies Company; (v) call, propose to the Company to call, publicly propose to call or take cause to be called any other action that would interfere with meeting of stockholders of the ability Company; (vi) form, join or participate in a “group” (as defined in the Securities Exchange Act of Sellers to vote in accordance with this Agreement;
(g1934 and the rules promulgated thereunder) make any disclosure, communication, announcement or statement regarding any intent, purpose, plan or proposal with respect to the FSC Board of Directors (the “Company Board”), the Company investment advisor or the terms and conditions any of the Company’s investment advisory agreementforegoing; (vii) advise, knowingly assist, knowingly encourage, act as a financing source for or otherwise invest in any third party engaging in any of the FSFR Board of Directors foregoing activities; (the “FSFR Board”), the FSFR investment advisor or the terms and conditions of FSFR’s investment advisory agreement, the Company, FSFR, or the management, policies or affairs of either viii) propose to the Company or FSFR, or with respect to this Agreement, that is inconsistent with the provisions of this Agreement;
(h) effect or seek to effect, offer or publicly propose to effect, cause or participate in, or in any way assist or facilitate any other person to effect or seek, offer or propose to effect or participate in, any tender or exchange offer, merger, consolidation, acquisition, scheme, arrangement, business combination, recapitalization, reorganization, sale or acquisition of assetsrestructuring, liquidation, dissolution, extraordinary dividend, significant share repurchase dissolution or other extraordinary transaction involving with respect to the Company, FSFR or either of their investment advisors, Company or any of their subsidiaries the Company’s subsidiaries; or joint ventures or any of their respective securities (each, an “Extraordinary Transaction”), or make any statement or disclosure regarding any intent, purpose, plan or proposal with respect to any Extraordinary Transaction or this Agreement that is inconsistent with the provisions of this Agreement, including any intent, purpose, plan or proposal that is conditioned on, or would require waiver, amendment, nullification or invalidation of, any provision of this Agreement or take any action that could require ix) request the Company or FSFR to make any public disclosure relating to any such intent, purpose, plan, proposal or condition;
(i) (i) call or seek to call or request the calling of any meeting of stockholders at either the Company or FSFR, including by written consent, (ii) seek, alone or in concert with others, representation on, or nominate any candidate to, the Company Board or the FSFR Board, (iii) seek the removal of any member of the Company Board or the FSFR Board, (iv) seek, alone or in concert with others, or support any Third Party in seeking, to replace the investment advisor of the Company or the investment advisor of FSFR, (v) solicit consents from the Company or FSFR stockholders or otherwise act or seek to act by written consent, (vi) conduct a referendum of the Company or FSFR stockholders or (vii) make a request for any stockholders list or any other books and records in Sellers’ capacity as a Company or FSFR stockholder;
(j) purchase or cause to be purchased or otherwise acquire or agree to acquire beneficial ownership of any securities issued by the Company or FSFR, or any securities convertible into or exchangeable for securities issued by the Company or FSFR;
(k) sell, offer to sell, give, pledge, grant a security interest in, encumber, assign, grant any option for the sale of or otherwise transfer or dispose of (each, a “Transfer”) any securities issued by the Company and/or any securities convertible into or exchangeable for securities issued by the Company, unless any Buyer fails to timely perform each of its obligations under Section 1.2(b), Section 1.3(c) and/or Section 1.3(d)(i) of this Agreement;
(l) institute, solicit or join, as a party, or knowingly assist any other person in instituting, soliciting or joining, any litigation, arbitration or other proceeding against the Company or FSFR or any of their current or former directors or officers (including derivative actions), other than (i) litigation to enforce the provisions of this Agreement and (ii) counterclaims with respect to any proceeding initiated by, or on behalf of, a party to this Agreement or FSFR against Sellers;
(m) enter into or engage in any short sale or purchase, sale or grant of any option, warrant, derivative, convertible security, stock appreciation right or other similar right (including, without limitation, any put or call option or swap transaction) with respect to or having any measurement relating to any securities of the Companies;
(n) enter into any negotiations, arrangements, understanding or agreements (whether written or oral) with, or advise, finance, assist, seek to knowingly persuade or encourage, any Third Party to take any action or make any statement in connection with any of the foregoing, or make any investment in or enter into any arrangement with any other person that engages, or offers or proposes to engage, in any of the foregoing, or otherwise take or cause any action or make any statement inconsistent with any of the foregoing; or
(o) take any action challenging the validity or enforceability of this Agreement, or make or in any way advance any request or proposal that the Company, FSFR, the Company Board or the FSFR Board amend, modify amend or waive any provision of this Section 7(a). Recipient further agrees that, during the Standstill Period, neither it nor any of its subsidiaries or other controlled affiliates will, without the written consent of the Company, take any initiative or other action with respect to the Company or any of the subsidiaries of the Company that would reasonably be expected to require the Company to make a public announcement regarding (x) any of the activities, events or circumstances referred to in the preceding sentences of this Section 7(a), (y) the possibility of a Transaction, any similar transaction or the pursuit of strategic alternatives or any strategic alternative by the Company or (z) the possibility of Recipient or any person affiliated with Recipient acquiring control of the Company whether by means of a business combination or otherwise. Subject to Section 7(b)(ii), Recipient represents to the Company that neither it nor any of its subsidiaries or other controlled affiliates owns (including beneficial ownership as defined in Rule 13d-3 under the Exchange Act) any securities of the Company as of the date hereof. For the avoidance of doubt, nothing in this Section 7 shall prohibit Recipient or any of its Representatives from (x) engaging in good faith, confidential negotiations with the Company or any of the Company’s Representatives regarding a possible Business Transaction involving the Company and Recipient, or (y) making proposals or requests to the Company or taking other actions in each case in connection with such negotiations.
(b) Notwithstanding anything to the contrary contained in this Agreement, (i) if, at any time during the Standstill Period, the Company enters into a binding, definitive agreement with respect to a Business Transaction with any third party, then the restrictions set forth in Section 7(a) shall immediately terminate and cease to be of any further force or effect, and (ii) Recipient (without being deemed to violate Section 7(a)) may own and may acquire shares or other ownership interests in any publicly traded mutual fund or similar entity that owns shares of stock of the Company.
Appears in 2 contracts
Samples: Confidentiality Agreement, Confidentiality Agreement (Gilead Sciences Inc)
Standstill. Effective from (a) During the date of this Agreement period commencing on the Closing and continuing until ending on the later of the certification of votes for the Company 2017 Annual Meeting of Stockholders or the certification of votes for the FSFR (Standstill Termination Date, as defined below) 2017 Annual Meeting , provided that the Company is not in breach of Stockholders its obligations under this Agreement (the “Standstill Period”including Section 1 hereof), except to the extent expressly permitted by the terms of this Agreement, none each of the Sellers shallPurchaser Parties (so long as such Purchaser Party is an Affiliate of the beneficial owner of the Company securities issued under the Purchase Agreement or the Exchange Agreement) shall not, and Sellers shall cause their respective its controlled Affiliates not to, directly or indirectly, in any manner, alone or in concert with others:
(ai) solicit, or knowingly encourage or in any way engage in any solicitation of, any proxies hostile or consents or become a “participant” in a “solicitation,” directly or indirectly, as such terms are defined in Regulation 14A under the Securities Exchange Act of 1934, as amended (the “Exchange Act”) of proxies or consents (including, without limitation, any solicitation of consents that seeks to call a special meeting of stockholders or by encouraging or participating in any “withhold” or similar campaign), in each case, takeover activities with respect to the Company (including by means of a tender offer or soliciting proxies or written consents, other than as recommended by the Board);
(ii) acquire or propose to acquire beneficial ownership of additional Common Stock (other than the Common Stock issuable upon the closing of the transactions contemplated by the Exchange Agreement) or other Company equity securities; or
(iii) acquire or propose to acquire any other equity securities of the Company or Fifth Street Senior Floating Rate Corp. (“FSFR”) or any securities convertible or exchangeable into or exercisable for any such securities (collectively, “equity securities of any Affiliates of the Companies”);Company.
(b) make any proposal for consideration by stockholders at any annual or special meeting Specifically, but without limiting Section 3(a), during the period commencing on the Closing and ending on the Standstill Termination Date, without the prior written consent of the stockholders Company, each of the Purchaser Parties shall not, and shall cause its controlled Affiliates not to, directly or indirectly:
(i) propose to enter into, directly or indirectly, any merger, consolidation, recapitalization, business combination, partnership, joint venture, acquisition or similar transaction involving the Company or FSFRany of its Affiliates or their properties, whether pursuant to Rule 14a-8 under the Exchange Act, either such company’s constituent documents or otherwiseexcept as expressly permitted hereby;
(c) knowingly advise, encourage, support, instruct or influence any person with respect to any of the matters covered by this Section 3.1 or with respect to the voting or disposition of any securities of the Companies at any annual or special meeting of stockholders of the Company or FSFR, except in accordance with Section 3.4, or seek to do so;
(d) agree, attempt, seek or propose to deposit any securities of the Companies in any voting trust or similar arrangement, or subject any securities of the Companies to any arrangement or agreement with respect to the voting thereof, except in accordance with Section 3.4;
(e) knowingly seek or encourage any person to submit nominations in furtherance of a “contested solicitation” or take other action for the election or removal of directors with respect to the Company or FSFR, including any action that is intended to, or is reasonably likely to result in, the replacement of the investment advisor of the Company or FSFR, or a modification to the terms or conditions of either the Company’s or FSFR’s investment advisory agreement;
(fii) form, join in or in any way participate in a partnership, limited partnership, syndicate or other “group, including, without limitation, a group as defined under ” (within the meaning of Section 13(d) of the Exchange Act (except such participation related to the reasonable unwinding of any such group currently existing as of the date of this AgreementAct) with any person who is not identified on Schedule I hereto (any such person, a “Third Party”), with respect to any voting securities of the Companies Company or take any of its Affiliates with anyone other action that would interfere with than the ability of Sellers to vote in accordance Purchaser Parties or the Purchaser’s Affiliates;
(iii) publicly disclose any intent, plan or arrangement inconsistent with this Agreement;; or
(giv) make any disclosureadvise, communication, announcement assist or statement regarding any intent, purpose, plan or proposal with respect to the FSC Board of Directors (the “Company Board”), the Company investment advisor or the terms and conditions of the Company’s investment advisory agreement, the FSFR Board of Directors (the “FSFR Board”), the FSFR investment advisor or the terms and conditions of FSFR’s investment advisory agreement, the Company, FSFR, or the management, policies or affairs of either the Company or FSFR, or with respect to this Agreement, that is inconsistent encourage others in connection with the above.
(c) Notwithstanding the foregoing provisions of this Agreement;
(h) effect or seek to effectSection 3, offer or propose to effectthe foregoing provisions shall not, cause or participate in, or in any way assist or facilitate any other person to effect or seek, offer or propose to effect or participate in, any tender or exchange offer, merger, consolidation, acquisition, scheme, arrangement, business combination, recapitalization, reorganization, sale or acquisition of assets, liquidation, dissolution, extraordinary dividend, significant share repurchase or other extraordinary transaction involving the Company, FSFR or either of their investment advisors, or any of their subsidiaries or joint ventures or any of their respective securities (each, an “Extraordinary Transaction”), or make any statement or disclosure regarding any intent, purpose, plan or proposal with respect to any Extraordinary Transaction or this Agreement that is inconsistent with the provisions of this Agreement, including any intent, purpose, plan or proposal that is conditioned on, or would require waiver, amendment, nullification or invalidation of, any provision of this Agreement or take any action that could require the Company or FSFR to make any public disclosure relating to any such intent, purpose, plan, proposal or condition;and are not intended to:
(i) (i) call prohibit any Purchaser Party or seek to call or request the calling of any meeting of stockholders at either the Company or FSFRits controlled Affiliates from privately communicating with, including by written consentmaking any offer or proposal to, the Board;
(ii) seekrestrict in any manner how any Purchaser Party or its controlled Affiliates vote their Common Stock or other Company securities, alone or except as provided in concert with others, representation on, or nominate Section 2;
(iii) restrict the manner in which any candidate to, Purchaser Designated Director may (A) vote on any matter submitted to the Company Board or the FSFR BoardStockholders, (iiiB) seek participate in deliberations or discussions of the removal of any Board (including making suggestions or raising issues to the Board) in his or her capacity as a member of the Company Board, or (C) take actions required by his or her exercise of legal duties and obligations as a member of the Board or refrain from taking any action prohibited by his or her legal duties and obligations as a member of the FSFR Board, ;
(iv) seek, alone or in concert with others, or support restrict any Third Purchaser Party in seeking, to replace the investment advisor of the Company or the investment advisor of FSFR, (v) solicit consents from the Company or FSFR stockholders or otherwise act or seek to act by written consent, (vi) conduct a referendum of the Company or FSFR stockholders or (vii) make a request for any stockholders list or any other books and records in Sellers’ capacity as a Company or FSFR stockholder;
(j) purchase or cause to be purchased or otherwise acquire or agree to acquire beneficial ownership of any securities issued by the Company or FSFR, or any securities convertible into or exchangeable for securities issued by the Company or FSFR;
(k) sell, offer to sell, give, pledge, grant a security interest in, encumber, assign, grant any option for the sale of or otherwise transfer or dispose of (each, a “Transfer”) any securities issued by the Company and/or any securities convertible into or exchangeable for securities issued by the Company, unless any Buyer fails to timely perform each of its obligations under Section 1.2(b), Section 1.3(c) and/or Section 1.3(d)(i) of this Agreement;
(l) institute, solicit or join, as a party, or knowingly assist any other person in instituting, soliciting or joining, any litigation, arbitration or other proceeding against the Company or FSFR or any of its Permitted Transferees from selling or transferring any of their current or former directors or officers (including derivative actions), other than (i) litigation to enforce the provisions of this Agreement and (ii) counterclaims with respect Company securities to any proceeding initiated by, other Purchaser Party or on behalf of, a party to this Agreement its Permitted Transferees or FSFR against Sellers;
(m) enter into or engage in any short sale or purchase, sale or grant successor of any option, warrant, derivative, convertible security, stock appreciation right or other similar right (including, without limitation, any put or call option or swap transaction) with respect to or having any measurement relating to any securities of the Companies;
(n) enter into any negotiations, arrangements, understanding or agreements (whether written or oral) with, or advise, finance, assist, seek to knowingly persuade or encourage, any Third such Purchaser Party to take any action or make any statement in connection with any of the foregoing, or make any investment in or enter into any arrangement with any other person that engages, or offers or proposes to engagethat, in any of such case, agrees to be bound by the foregoing, or otherwise take or cause any action or make any statement inconsistent with any of the foregoingprovisions contained in this Agreement; or
(ov) take any action challenging restrict the validity or enforceability preemptive rights provided to the Purchaser pursuant to Section 4.13 of this the Exchange Agreement, or make or in any way advance any request or proposal that the Company, FSFR, exercise thereof by the Company Board Purchaser or the FSFR Board amend, modify purchase or waive acquisition of any provision of this AgreementCompany securities by the Purchaser pursuant thereto.
Appears in 2 contracts
Samples: Board Representation and Standstill Agreement (LSB Industries Inc), Board Representation and Standstill Agreement (LSB Funding LLC)
Standstill. Effective from the date of this Agreement and continuing until the later of the certification of votes for the Company 2017 Annual Meeting of Stockholders or the certification of votes for the FSFR Each Seller agrees that such Seller shall not (as defined belowa) 2017 Annual Meeting of Stockholders (the “Standstill Period”), except to the extent expressly permitted by the terms of this Agreement, none of the Sellers shall, and Sellers shall cause their respective controlled Affiliates not to, directly or indirectly, in any manner, acting alone or in concert with others:
, seek to affect or influence the control of the management or board of directors of Parent or the business, operations or policies of Parent; (ab) solicitdeposit any shares of Parent Class A Common Stock or securities exercisable or exchangeable or convertible into shares of Parent Class A Common Stock, or knowingly encourage other securities having the right to vote generally with shares of Parent Class A Common Stock (collectively "Parent Voting Securities") in a voting trust or subject any Parent Voting Securities to any proxy, arrangement or agreement with respect to the voting of such Parent Voting Securities or other agreement having similar effect; (c) initiate or propose any stockholder proposal or make, or in any way engage in any solicitation ofway, any proxies or consents or become a “participant” in a “solicitation,” participate in, directly or indirectly, any "solicitation" of "proxies" to vote, other than in connection with the Merger and the Merger Agreement, or intentionally seek in an organized fashion to influence any person with respect to the voting of, any Parent Voting Securities in a manner inconsistent with the position of the board of directors of Parent or become "participant" in a "solicitation" (as such terms are defined in Regulation 14A under the Securities Exchange Act of 1934, as amended (the “Exchange Act”) of proxies or consents (including, without limitation, any solicitation of consents that seeks to call a special meeting of stockholders or by encouraging or participating in any “withhold” or similar campaign), in each case, with respect to securities of the Company or Fifth Street Senior Floating Rate Corp. (“FSFR”) or any securities convertible or exchangeable into or exercisable for any such securities (collectively, “securities of the Companies”);
(b) make any proposal for consideration by stockholders at any annual or special meeting of the stockholders of the Company or FSFR, whether pursuant to Rule 14a-8 under the Exchange Act, either such company’s constituent documents or otherwise;
(cas in effect on the date hereof) knowingly advise, encourage, support, instruct or influence any person in opposition to the recommendation of the majority of the directors of Parent with respect to any of the matters covered by this Section 3.1 or with respect to the voting or disposition of any securities of the Companies at any annual or special meeting of stockholders of the Company or FSFR, except in accordance with Section 3.4, or seek to do so;
matter; (d) agree, attempt, seek or propose to deposit any securities of the Companies in any voting trust or similar arrangement, or subject any securities of the Companies to any arrangement or agreement with respect to the voting thereof, except in accordance with Section 3.4;
(e) knowingly seek or encourage any person to submit nominations in furtherance of a “contested solicitation” or take other action for the election or removal of directors with respect to the Company or FSFR, including any action that is intended to, or is reasonably likely to result in, the replacement of the investment advisor of the Company or FSFR, or a modification to the terms or conditions of either the Company’s or FSFR’s investment advisory agreement;
(f) form, join in or in any way participate in a partnership, limited partnership, syndicate or other group, includingor otherwise act in concert with any other person, without limitationfor the purpose of acquiring, holding, voting or disposing of Parent Voting Securities, or, otherwise become a group as defined under "person" within the meaning of Section 13(d13(d)(3) of the Exchange Act (except such participation related relating to the reasonable unwinding of any such group currently existing as of the date of this Agreement) with any person who is not identified on Schedule I hereto matters set forth in clauses (any such person, a “Third Party”a), with respect to any securities of the Companies (b) or (c); or (e) take any other action that would interfere with the ability of Sellers to vote in accordance inconsistent with this Agreement;
(g) make any disclosure, communication, announcement or statement regarding any intent, purpose, plan or proposal with respect to the FSC Board of Directors (the “Company Board”), the Company investment advisor or the terms and conditions of the Company’s investment advisory agreement, the FSFR Board of Directors (the “FSFR Board”), the FSFR investment advisor or the terms and conditions of FSFR’s investment advisory agreement, the Company, FSFR, or the management, policies or affairs of either the Company or FSFR, or with respect to this Agreement, that is inconsistent with the Section 9.10. The provisions of this Agreement;
(h) effect or seek to effect, offer or propose to effect, cause or participate in, or in any way assist or facilitate any other person to effect or seek, offer or propose to effect or participate in, any tender or exchange offer, merger, consolidation, acquisition, scheme, arrangement, business combination, recapitalization, reorganization, sale or acquisition of assets, liquidation, dissolution, extraordinary dividend, significant share repurchase or other extraordinary transaction involving the Company, FSFR or either of their investment advisors, or any of their subsidiaries or joint ventures or any of their respective securities (each, an “Extraordinary Transaction”), or make any statement or disclosure regarding any intent, purpose, plan or proposal with respect Section 9.10 shall not apply to any Extraordinary Transaction or this Agreement that is inconsistent with Seller following such time after the provisions of this Agreement, including any intent, purpose, plan or proposal that is conditioned on, or would require waiver, amendment, nullification or invalidation of, any provision of this Agreement or take any action that could require the Company or FSFR Exchange as such Seller cease to make any public disclosure relating to any such intent, purpose, plan, proposal or condition;
(i) (i) call or seek to call or request the calling of any meeting of stockholders beneficially own at either the Company or FSFR, including by written consent, (ii) seek, alone or in concert with others, representation on, or nominate any candidate to, the Company Board or the FSFR Board, (iii) seek the removal of any member least 25% of the Company Board or Exchange Shares acquired by such Seller in the FSFR Board, (iv) seek, alone or in concert with others, or support any Third Party in seeking, to replace the investment advisor of the Company or the investment advisor of FSFR, (v) solicit consents from the Company or FSFR stockholders or otherwise act or seek to act by written consent, (vi) conduct a referendum of the Company or FSFR stockholders or (vii) make a request for any stockholders list or any other books and records in Sellers’ capacity as a Company or FSFR stockholder;
(j) purchase or cause to be purchased or otherwise acquire or agree to acquire beneficial ownership of any securities issued by the Company or FSFR, or any securities convertible into or exchangeable for securities issued by the Company or FSFR;
(k) sell, offer to sell, give, pledge, grant a security interest in, encumber, assign, grant any option for the sale of or otherwise transfer or dispose of (each, a “Transfer”) any securities issued by the Company and/or any securities convertible into or exchangeable for securities issued by the Company, unless any Buyer fails to timely perform each of its obligations under Section 1.2(b), Section 1.3(c) and/or Section 1.3(d)(i) of this Agreement;
(l) institute, solicit or join, as a party, or knowingly assist any other person in instituting, soliciting or joining, any litigation, arbitration or other proceeding against the Company or FSFR or any of their current or former directors or officers (including derivative actions), other than (i) litigation to enforce the provisions of this Agreement and (ii) counterclaims with respect to any proceeding initiated by, or on behalf of, a party to this Agreement or FSFR against Sellers;
(m) enter into or engage in any short sale or purchase, sale or grant of any option, warrant, derivative, convertible security, stock appreciation right or other similar right (including, without limitation, any put or call option or swap transaction) with respect to or having any measurement relating to any securities of the Companies;
(n) enter into any negotiations, arrangements, understanding or agreements (whether written or oral) with, or advise, finance, assist, seek to knowingly persuade or encourage, any Third Party to take any action or make any statement in connection with any of the foregoing, or make any investment in or enter into any arrangement with any other person that engages, or offers or proposes to engage, in any of the foregoing, or otherwise take or cause any action or make any statement inconsistent with any of the foregoing; or
(o) take any action challenging the validity or enforceability of this Agreement, or make or in any way advance any request or proposal that the Company, FSFR, the Company Board or the FSFR Board amend, modify or waive any provision of this AgreementExchange.
Appears in 2 contracts
Samples: Stock Exchange Agreement (Charterhouse Equity Partners Ii Lp), Stock Exchange Agreement (Designer Holdings LTD)
Standstill. Effective from (a) From the First Closing Date until the date of this Agreement on which the CD&R Designator is no longer entitled to designate a Director to the Board pursuant to Section 2.2, the CD&R Parties, the Purchaser and continuing until the later CD&R Manager shall not, shall cause each other CD&R Entity or Affiliate of the certification of votes for the Company 2017 Annual Meeting of Stockholders Purchaser or the certification CD&R Manager not to, shall use its reasonable best efforts to cause any portfolio company of votes for the FSFR (as defined below) 2017 Annual Meeting of Stockholders (the “Standstill Period”), except to the extent expressly permitted by the terms of this Agreement, none any CD&R Entity or Affiliate of the Sellers shallPurchaser or the CD&R Manager not to, and Sellers shall cause their respective controlled Affiliates not toknowingly direct, recommend or encourage any such portfolio company to knowingly, directly or indirectly, in any manner, alone or in concert with otherswithout the prior written approval of at least a majority of the Directors not designated by the CD&R Designator:
(a1) solicitacquire, agree to acquire, propose or offer to acquire (including through any hedging or other similar transaction), Equity Securities or securities that are convertible or exchangeable into (or exercisable for), Equity Securities, other than as a result of (x) any stock split, stock dividend or subdivision of Equity Securities or (y) the exercise by the CD&R Parties of their preemptive rights pursuant to Section 2.6 below or (z) any Capitalization Issue in accordance with the Authorizing Resolutions or any conversion of the Preferred Shares pursuant to the Authorizing Resolutions;
(2) transfer any Equity Securities into a voting trust or similar contract or subject any Equity Securities to any voting agreement, pooling arrangement or similar arrangement (other than the Voting Agreement), or knowingly encourage grant any proxy with respect to any Equity Securities (other than to the Company or a person specified by the Company in a proxy card provided to shareholders of the Company by or on behalf of the Company);
(3) enter, agree to enter, or publicly propose or offer to enter into any merger, business combination, sale of assets, recapitalization, restructuring or change in control transaction;
(4) make, or in any way participate or engage in any solicitation ofin, any proxies or consents or become a “participant” in a “solicitation,” directly or indirectly, of “proxies” (as such terms are defined used in Regulation Section 14A under of the Securities Exchange Act of 1934and the regulations promulgated thereunder) to vote, as amended (the “Exchange Act”) of proxies or consents (including, without limitation, any solicitation of consents that seeks to call a special meeting of stockholders advise or by encouraging or participating in any “withhold” or similar campaign), in each case, with respect to securities of the Company or Fifth Street Senior Floating Rate Corp. (“FSFR”) or any securities convertible or exchangeable into or exercisable for any such securities (collectively, “securities of the Companies”);
(b) make any proposal for consideration by stockholders at any annual or special meeting of the stockholders of the Company or FSFR, whether pursuant to Rule 14a-8 under the Exchange Act, either such company’s constituent documents or otherwise;
(c) knowingly advise, encourage, support, instruct or influence any person with respect to any of the matters covered by this Section 3.1 or Person with respect to the voting or disposition of of, any securities of the Companies at any annual or special meeting of stockholders Equity Securities, other than on behalf of the Company or FSFR, except in accordance with Section 3.4to effectuate the governance arrangements contemplated by the Transaction Documents;
(5) call, or seek to do so;
(d) agreecall, attempt, seek or propose to deposit any securities a meeting of the Companies in any voting trust or similar arrangement, or subject any securities of the Companies to any arrangement or agreement with respect to the voting thereof, except in accordance with Section 3.4;
(e) knowingly seek or encourage any person to submit nominations in furtherance of a “contested solicitation” or take other action for the election or removal of directors with respect to the Company or FSFR, including any action that is intended to, or is reasonably likely to result in, the replacement of the investment advisor shareholders of the Company or FSFR, or a modification to the terms or conditions initiate any shareholder proposal for action by shareholders of either the Company’s or FSFR’s investment advisory agreement, other than to effectuate the governance arrangements contemplated by the Transaction Documents;
(f6) form, join in or in any way participate in a partnership, limited partnership, syndicate or other group, including, without limitation, a group (as defined under in Section 13(d13(d)(3) of the Exchange Act (except such participation related to the reasonable unwinding of any such group currently existing as of the date of this AgreementAct) with any person who is not identified on Schedule I hereto (any such person, a “Third Party”), with respect to any securities of Equity Securities, other than with First Reserve or its Affiliates to the Companies or take any other action that would interfere with extent permitted by the ability of Sellers to vote in accordance with this Voting Agreement;
(gi) Transfer any Equity Securities to any Person who or that is (or will become upon consummation of such sale, transfer or other disposition) a beneficial owner of 10% or more of the Adjusted Ordinary Shares; or (ii) without the prior written consent of the Company, on any single day, Transfer more than 10% of the Adjusted Ordinary Shares through the public markets, in each case, other than pursuant to an underwritten registered public offering; or
(8) publicly disclose any intention, plan, arrangement or other contract prohibited by the foregoing.
(b) The Purchaser, the CD&R Manager and the CD&R Parties shall not, shall cause each other CD&R Entity or Affiliate of the Purchaser or the CD&R Manager not to and shall use its reasonable best efforts to cause any portfolio company of any CD&R Entity or Affiliate of the Purchaser or the CD&R Manager not to knowingly, directly or indirectly, take any action that would reasonably be expected to require the Company to make a public announcement regarding the possibility of a business combination, merger, sale of assets or other type of transaction or matter described in Section 2.3(a).
(c) For the avoidance of doubt, this Section 2.3 shall in no way limit the ability of the Directors to act in their capacity as Directors, restrict any disclosureCD&R Entity from making private proposals to the Board, communicationor limit the CD&R Parties’ ability to vote or Transfer (subject to Section 2.3(a)(7)) any Equity Securities.
(d) The obligations of the Purchaser, announcement or statement regarding any intent, purpose, plan or proposal the CD&R Manager and the CD&R Parties in this Section 2.3 shall terminate and be of no further effect if the CD&R Parties no longer Beneficially Own at least 20% of the Adjusted Ordinary Shares and (1) the Company enters into a definitive agreement with respect to the FSC Board a merger, business combination, or sale of Directors all or substantially all of its direct and indirect assets, recapitalization or change of control transaction; (the “Company Board”), 2) the Company investment advisor or the terms and conditions of the Company’s investment advisory agreement, the FSFR Board of Directors (the “FSFR Board”), the FSFR investment advisor or the terms and conditions of FSFR’s investment advisory agreement, the Company, FSFR, or the management, policies or affairs of either the Company or FSFR, or commences a process to solicit proposals with respect to this Agreement, that is inconsistent with any of the provisions transactions described in clause (1) of this Agreement;
(h) effect or seek to effect, offer or propose to effect, cause or participate inSection 2.3(d), or publicly approves or recommends any of the transactions described in any way assist clause (1) of this Section 2.3(d); or facilitate any other person (3) a third party acquires, makes an offer to effect acquire, or seekmakes a public announcement with respect to its intention to make an offer to acquire (whether by a merger, offer or propose to effect or participate inbusiness combination, any sale of assets, recapitalization, restructuring, tender or exchange offer, merger, consolidation, acquisition, scheme, arrangement, business combination, recapitalization, reorganization, sale or acquisition otherwise) 20% or more of the Company’s assets, liquidation, dissolution, extraordinary dividend, significant share repurchase or other extraordinary transaction involving the Company, FSFR 20% or either of their investment advisors, or any of their subsidiaries or joint ventures or any of their respective securities (each, an “Extraordinary Transaction”), or make any statement or disclosure regarding any intent, purpose, plan or proposal with respect to any Extraordinary Transaction or this Agreement that is inconsistent with the provisions of this Agreement, including any intent, purpose, plan or proposal that is conditioned on, or would require waiver, amendment, nullification or invalidation of, any provision of this Agreement or take any action that could require the Company or FSFR to make any public disclosure relating to any such intent, purpose, plan, proposal or condition;
(i) (i) call or seek to call or request the calling more of any meeting class of stockholders at either the Company or FSFR, including by written consent, (ii) seek, alone or in concert with others, representation on, or nominate any candidate to, the Company Board or the FSFR Board, (iii) seek the removal of any member securities of the Company and the Board or the FSFR Board, (iv) seek, alone or publicly recommends in concert with others, or support any Third Party in seeking, to replace the investment advisor favor of the Company or the investment advisor of FSFR, (v) solicit consents from the Company or FSFR stockholders or otherwise act or seek to act by written consent, (vi) conduct a referendum of the Company or FSFR stockholders or (vii) make a request for any stockholders list or any other books and records in Sellers’ capacity as a Company or FSFR stockholder;
(j) purchase or cause to be purchased or otherwise acquire or agree to acquire beneficial ownership of any securities issued by the Company or FSFR, or any securities convertible into or exchangeable for securities issued by the Company or FSFR;
(k) sell, offer to sell, give, pledge, grant a security interest in, encumber, assign, grant any option for the sale of or otherwise transfer or dispose of (each, a “Transfer”) any securities issued by the Company and/or any securities convertible into or exchangeable for securities issued by the Company, unless any Buyer fails to timely perform each of its obligations under Section 1.2(b), Section 1.3(c) and/or Section 1.3(d)(i) of this Agreement;
(l) institute, solicit or join, as a party, or knowingly assist any other person in instituting, soliciting or joining, any litigation, arbitration or other proceeding against the Company or FSFR or any of their current or former directors or officers (including derivative actions), other than (i) litigation to enforce the provisions of this Agreement and (ii) counterclaims with respect to any proceeding initiated by, or on behalf of, a party to this Agreement or FSFR against Sellers;
(m) enter into or engage in any short sale or purchase, sale or grant of any option, warrant, derivative, convertible security, stock appreciation right or other similar right (including, without limitation, any put or call option or swap transaction) with respect to or having any measurement relating to any securities of the Companies;
(n) enter into any negotiations, arrangements, understanding or agreements (whether written or oral) with, or advise, finance, assist, seek to knowingly persuade or encourage, any Third Party to take any action or make any statement in connection with any of the foregoing, or make any investment in or enter into any arrangement with any other person that engages, or offers or proposes to engage, in any of the foregoing, or otherwise take or cause any action or make any statement inconsistent with any of the foregoing; or
(o) take any action challenging the validity or enforceability of this Agreement, or make or in any way advance any request or proposal that the Company, FSFR, the Company Board or the FSFR Board amend, modify or waive any provision of this Agreementsuch acquisition.
Appears in 2 contracts
Samples: Shareholders Agreement (CHC Group Ltd.), Shareholders Agreement (CHC Group Ltd.)
Standstill. Effective Shareholder agrees that, for a period of two years from the date Effective Time, unless such shall have been specifically invited in writing by MAPICS, neither Shareholder nor any of this Agreement and continuing until the later of the certification of votes for the Company 2017 Annual Meeting of Stockholders its directors, officers or the certification of votes for the FSFR employees (as defined below) 2017 Annual Meeting of Stockholders (the “Standstill Period”collectively, "Representatives"), except to the extent expressly permitted by the terms of this Agreement, none of the Sellers shall, and Sellers shall cause their respective controlled Affiliates not towill in any manner, directly or indirectly, in any manner, alone or in concert with others:
(a) soliciteffect or seek, offer or propose (whether publicly or otherwise) to effect, or knowingly encourage cause or in any way engage in any solicitation of, any proxies or consents or become a “participant” in a “solicitation,” directly or indirectly, as such terms are defined in Regulation 14A under the Securities Exchange Act of 1934, as amended (the “Exchange Act”) of proxies or consents (including, without limitation, any solicitation of consents that seeks to call a special meeting of stockholders or by encouraging or participating in any “withhold” or similar campaign), in each case, with respect to securities of the Company or Fifth Street Senior Floating Rate Corp. (“FSFR”) or any securities convertible or exchangeable into or exercisable for any such securities (collectively, “securities of the Companies”);
(b) make any proposal for consideration by stockholders at any annual or special meeting of the stockholders of the Company or FSFR, whether pursuant to Rule 14a-8 under the Exchange Act, either such company’s constituent documents or otherwise;
(c) knowingly advise, encourage, support, instruct or influence any person with respect to any of the matters covered by this Section 3.1 or with respect to the voting or disposition of any securities of the Companies at any annual or special meeting of stockholders of the Company or FSFR, except in accordance with Section 3.4, or seek to do so;
(d) agree, attempt, seek or propose to deposit any securities of the Companies in any voting trust or similar arrangement, or subject any securities of the Companies to any arrangement or agreement with respect to the voting thereof, except in accordance with Section 3.4;
(e) knowingly seek or encourage any person to submit nominations in furtherance of a “contested solicitation” or take other action for the election or removal of directors with respect to the Company or FSFR, including any action that is intended to, or is reasonably likely to result in, the replacement of the investment advisor of the Company or FSFR, or a modification to the terms or conditions of either the Company’s or FSFR’s investment advisory agreement;
(f) form, join participate in or in any way participate in a partnership, limited partnership, syndicate or other group, including, without limitation, a group as defined under Section 13(d) of the Exchange Act (except such participation related to the reasonable unwinding of any such group currently existing as of the date of this Agreement) with any person who is not identified on Schedule I hereto (any such person, a “Third Party”), with respect to any securities of the Companies or take any other action that would interfere with the ability of Sellers to vote in accordance with this Agreement;
(g) make any disclosure, communication, announcement or statement regarding any intent, purpose, plan or proposal with respect to the FSC Board of Directors (the “Company Board”), the Company investment advisor or the terms and conditions of the Company’s investment advisory agreement, the FSFR Board of Directors (the “FSFR Board”), the FSFR investment advisor or the terms and conditions of FSFR’s investment advisory agreement, the Company, FSFR, or the management, policies or affairs of either the Company or FSFR, or with respect to this Agreement, that is inconsistent with the provisions of this Agreement;
(h) effect or seek to effect, offer or propose to effect, cause or participate in, or in any way assist or facilitate any other person to effect or seek, offer or propose (whether publicly or otherwise) to effect or participate in, (i) any acquisition of any securities (or beneficial ownership thereof) or assets of MAPICS or any of its Subsidiaries; provided that Shareholder may acquire shares of MAPICS equal to or less than five percent (5%) of the number of shares issued to Shareholder in the Merger, (ii) any tender or exchange offer, mergermerger or other business combination involving MAPICS or any of its Subsidiaries, consolidation, acquisition, scheme, arrangement, business combination, (iii) any recapitalization, reorganization, sale or acquisition of assetsrestructuring, liquidation, dissolution, extraordinary dividend, significant share repurchase dissolution or other extraordinary transaction involving the Company, FSFR or either of their investment advisors, with respect to MAPICS or any of their subsidiaries or joint ventures or any of their respective securities (each, an “Extraordinary Transaction”)its Subsidiaries, or make (iv) any statement "solicitation" of "proxies" (as such terms are used in the proxy rules of the Securities and Exchange Commission) or disclosure regarding consents to vote any intentvoting securities of MAPICS, purpose(b) form, plan join or proposal with respect in any way participate in a "group" (as defined under the 1934 Act) other than any "group" that may be deemed to any Extraordinary Transaction be formed by thix Xxxxxxent or this Agreement that is inconsistent with by the provisions of this Investor Rights Agreement, including any intent, purpose, plan or proposal that is conditioned on, or would require waiver, amendment, nullification or invalidation of, any provision of this Agreement or take any action that could require the Company or FSFR to make any public disclosure relating to any such intent, purpose, plan, proposal or condition;
(ic) (i) call or seek to call or request the calling of any meeting of stockholders at either the Company or FSFR, including by written consent, (ii) seekotherwise act, alone or in concert with others, representation onto seek to control or influence the management, board of directors or policies of MAPICS, (d) take any action which might force the Company to make a public announcement regarding any of the types of matters set forth in (a) above, or nominate (e) enter into any candidate to, the Company Board discussions or the FSFR Board, (iii) seek the removal of arrangements with any member of the Company Board or the FSFR Board, (iv) seek, alone or in concert with others, or support any Third Party in seeking, to replace the investment advisor of the Company or the investment advisor of FSFR, (v) solicit consents from the Company or FSFR stockholders or otherwise act or seek to act by written consent, (vi) conduct a referendum of the Company or FSFR stockholders or (vii) make a request for any stockholders list or any other books and records in Sellers’ capacity as a Company or FSFR stockholder;
(j) purchase or cause to be purchased or otherwise acquire or agree to acquire beneficial ownership of any securities issued by the Company or FSFR, or any securities convertible into or exchangeable for securities issued by the Company or FSFR;
(k) sell, offer to sell, give, pledge, grant a security interest in, encumber, assign, grant any option for the sale of or otherwise transfer or dispose of (each, a “Transfer”) any securities issued by the Company and/or any securities convertible into or exchangeable for securities issued by the Company, unless any Buyer fails to timely perform each of its obligations under Section 1.2(b), Section 1.3(c) and/or Section 1.3(d)(i) of this Agreement;
(l) institute, solicit or join, as a party, or knowingly assist any other person in instituting, soliciting or joining, any litigation, arbitration or other proceeding against the Company or FSFR or any of their current or former directors or officers (including derivative actions), other than (i) litigation to enforce the provisions of this Agreement and (ii) counterclaims third party with respect to any proceeding initiated by, or on behalf of, a party to this Agreement or FSFR against Sellers;
(m) enter into or engage in any short sale or purchase, sale or grant of any option, warrant, derivative, convertible security, stock appreciation right or other similar right (including, without limitation, any put or call option or swap transaction) with respect to or having any measurement relating to any securities of the Companies;
(n) enter into any negotiations, arrangements, understanding or agreements (whether written or oral) with, or advise, finance, assist, seek to knowingly persuade or encourage, any Third Party to take any action or make any statement in connection with any of the foregoing. Shareholder also agrees during such period not to request MAPICS (or its directors, officers, employees, advisors or make any investment in agents), directly or enter into any arrangement with any other person that engagesindirectly, or offers or proposes to engage, in any of the foregoing, or otherwise take or cause any action or make any statement inconsistent with any of the foregoing; or
(o) take any action challenging the validity or enforceability of this Agreement, or make or in any way advance any request or proposal that the Company, FSFR, the Company Board or the FSFR Board amend, modify amend or waive any provision of this Agreementparagraph (including this sentence). Shareholder acknowledges that Shareholder is aware (and that its Representatives who are apprised of this matter have been advised) that the United States securities laws prohibit Shareholder, its Representatives, and any person who has received material non-public information about MAPICS from purchasing or selling securities of MAPICS or from communicating such information to any other person under circumstances in which it is reasonably foreseeable that such person is likely to purchase or sell such securities in reliance on such information.
Appears in 2 contracts
Samples: Shareholder Agreement (Morgan Stanley), Shareholder Agreement (Frontstep Inc)
Standstill. Effective Xxxxx and Purchaser agree that, for a period of one year from the date Closing Date, neither they nor any of this Agreement and continuing until the later their controlled “affiliates” (as such term is defined in Rule 12b-2 of the certification Securities Exchange Act of votes for the Company 2017 Annual Meeting of Stockholders or the certification of votes for the FSFR (as defined below) 2017 Annual Meeting of Stockholders 1934 (the “Standstill PeriodExchange Act”), except to the extent expressly permitted by the terms of this Agreement, none but excluding any companies in which Xxxxx holds less than 25% of the Sellers shalloutstanding equity or 25% of the board seats) will, and Sellers shall or will assist or encourage others to, without the prior written consent of Seller: (i) acquire or agree, offer, seek or propose to acquire, or cause their respective controlled Affiliates not toto be acquired, directly or indirectly, by purchase or otherwise, ownership (including, without limitation, beneficial ownership as defined in Rule 13d-3 of the Securities Exchange Act of 1934 of any mannervoting securities or direct or indirect rights or options to acquire any voting securities of Seller or any subsidiary thereof, alone or of any successor to or person in concert with others:
control of Seller, any of the assets or businesses of Seller or any subsidiary or division thereof or of any such successor or controlling person or any bank debt, claims or other obligations of Seller or any rights or options to acquire (aother than those currently owned) such ownership (including from a third party) provided that the foregoing will not prohibit X. Xxxxx & Co. Inc. from effecting unsolicited client transactions in securities of Seller; (ii) seek or propose to influence or control the management or policies of Seller or to obtain representation on Seller’s Board of Directors, or solicit, or knowingly encourage or participate in any way engage in any the solicitation of, any proxies or consents or become a “participant” in a “solicitation,” directly or indirectly, as such terms are defined in Regulation 14A under the Securities Exchange Act of 1934, as amended (the “Exchange Act”) of proxies or consents (including, without limitation, any solicitation of consents that seeks to call a special meeting of stockholders or by encouraging or participating in any “withhold” or similar campaign), in each case, with respect to any securities of the Company Seller, or Fifth Street Senior Floating Rate Corp. (“FSFR”) or any securities convertible or exchangeable into or exercisable for any such securities (collectively, “securities of the Companies”);
(b) make any proposal for consideration by stockholders at any annual or special meeting of the stockholders of the Company or FSFR, whether pursuant to Rule 14a-8 under the Exchange Act, either such company’s constituent documents or otherwise;
(c) knowingly advise, encourage, support, instruct or influence any person public announcement with respect to any of the matters covered by this Section 3.1 foregoing or request permission to do any of the foregoing; (iii) make any public announcement with respect to, or submit a proposal for, or offer of (with or without conditions) any extraordinary transaction involving Seller or its securities or assets; (iv) enter into any discussions, negotiations, arrangements or understandings with any third party with respect to the voting or disposition of any securities of the Companies at any annual or special meeting of stockholders of the Company or FSFR, except in accordance with Section 3.4foregoing, or seek to do so;
(d) agree, attempt, seek or propose to deposit any securities of the Companies in any voting trust or similar arrangement, or subject any securities of the Companies to any arrangement or agreement with respect to the voting thereof, except in accordance with Section 3.4;
(e) knowingly seek or encourage any person to submit nominations in furtherance of a “contested solicitation” or take other action for the election or removal of directors with respect to the Company or FSFR, including any action that is intended to, or is reasonably likely to result in, the replacement of the investment advisor of the Company or FSFR, or a modification to the terms or conditions of either the Company’s or FSFR’s investment advisory agreement;
(f) otherwise form, join in or in any way participate in a partnership, limited partnership, syndicate or other “group, including, without limitation, a group ” (as defined under in Section 13(d13(d)(3) of the Exchange Act (except such participation related to the reasonable unwinding of any such group currently existing as of the date of this AgreementAct) with any person who is not identified on Schedule I hereto (any such person, a “Third Party”), with respect to any securities of the Companies or take any other action that would interfere with the ability of Sellers to vote in accordance with this Agreement;
(g) make any disclosure, communication, announcement or statement regarding any intent, purpose, plan or proposal with respect to the FSC Board of Directors (the “Company Board”), the Company investment advisor or the terms and conditions of the Company’s investment advisory agreement, the FSFR Board of Directors (the “FSFR Board”), the FSFR investment advisor or the terms and conditions of FSFR’s investment advisory agreement, the Company, FSFR, or the management, policies or affairs of either the Company or FSFR, or with respect to this Agreement, that is inconsistent with the provisions of this Agreement;
(h) effect or seek to effect, offer or propose to effect, cause or participate in, or in any way assist or facilitate any other person to effect or seek, offer or propose to effect or participate in, any tender or exchange offer, merger, consolidation, acquisition, scheme, arrangement, business combination, recapitalization, reorganization, sale or acquisition of assets, liquidation, dissolution, extraordinary dividend, significant share repurchase or other extraordinary transaction involving the Company, FSFR or either of their investment advisors, or any of their subsidiaries or joint ventures or any of their respective securities (each, an “Extraordinary Transaction”), or make any statement or disclosure regarding any intent, purpose, plan or proposal with respect to any Extraordinary Transaction or this Agreement that is inconsistent with the provisions of this Agreement, including any intent, purpose, plan or proposal that is conditioned on, or would require waiver, amendment, nullification or invalidation of, any provision of this Agreement or take any action that could require the Company or FSFR to make any public disclosure relating to any such intent, purpose, plan, proposal or condition;
(i) (i) call or seek to call or request the calling of any meeting of stockholders at either the Company or FSFR, including by written consent, (ii) seek, alone or in concert with others, representation on, or nominate any candidate to, the Company Board or the FSFR Board, (iii) seek the removal of any member of the Company Board or the FSFR Board, (iv) seek, alone or in concert with others, or support any Third Party in seeking, to replace the investment advisor of the Company or the investment advisor of FSFR, (v) solicit consents from the Company or FSFR stockholders or otherwise act or seek to act by written consent, (vi) conduct a referendum of the Company or FSFR stockholders or (vii) make a request for any stockholders list or any other books and records in Sellers’ capacity as a Company or FSFR stockholder;
(j) purchase or cause to be purchased or otherwise acquire or agree to acquire beneficial ownership of any securities issued by the Company or FSFR, or any securities convertible into or exchangeable for securities issued by the Company or FSFR;
(k) sell, offer to sell, give, pledge, grant a security interest in, encumber, assign, grant any option for the sale of or otherwise transfer or dispose of (each, a “Transfer”) any securities issued by the Company and/or any securities convertible into or exchangeable for securities issued by the Company, unless any Buyer fails to timely perform each of its obligations under Section 1.2(b), Section 1.3(c) and/or Section 1.3(d)(i) of this Agreement;
(l) institute, solicit or join, as a party, or knowingly assist any other person in instituting, soliciting or joining, any litigation, arbitration or other proceeding against the Company or FSFR or any of their current or former directors or officers (including derivative actions), other than (i) litigation to enforce the provisions of this Agreement and (ii) counterclaims with respect to any proceeding initiated by, or on behalf of, a party to this Agreement or FSFR against Sellers;
(m) enter into or engage in any short sale or purchase, sale or grant of any option, warrant, derivative, convertible security, stock appreciation right or other similar right (including, without limitation, any put or call option or swap transaction) with respect to or having any measurement relating to any securities of the Companies;
(n) enter into any negotiations, arrangements, understanding or agreements (whether written or oral) with, or advise, finance, assist, seek to knowingly persuade or encourage, any Third Party to take any action or make any statement in connection with any of the foregoing, ; (v) publicly seek or make request permission or participate in any investment in or enter into any arrangement with any other person that engages, or offers or proposes effort to engage, in do any of the foregoing, or otherwise take or cause any action foregoing or make or seek permission to make any statement inconsistent public announcement with any of respect to the foregoing; or
or (ovi) take publicly request Seller or any action challenging the validity of its representatives, directly or enforceability of this Agreementindirectly, or make or in any way advance any request or proposal that the Company, FSFR, the Company Board or the FSFR Board amend, modify to amend or waive any provision of this AgreementSection 4.15.
Appears in 2 contracts
Samples: Merger and Asset Purchase Agreement (National Rv Holdings Inc), Merger and Asset Purchase Agreement (Riley Investment Management LLC)
Standstill. Effective from Neither IITRI, any of its Affiliates, nor any holder of Seller Warrants or Seller Shares (each, for the date purposes of this Agreement and continuing until the later Section 6, a "Restricted Holder") shall, directly or indirectly, at any time:
(a) purchase or otherwise acquire, or propose or offer to purchase or acquire, any shares of, or security of the certification Company convertible into, Common Stock or any right, subscription, warrant, call, option or other agreement to purchase or otherwise receive any shares of votes for the Company 2017 Annual Meeting of Stockholders Common Stock, whether by tender offer, market purchase, privately negotiated purchase, merger or the certification of votes for the FSFR otherwise (as defined below) 2017 Annual Meeting of Stockholders (the “Standstill Period”an "Acquisition"), except to the extent expressly permitted by the terms of this Agreement, none (i) if immediately following such Acquisition such Restricted Holder would Beneficially Own less than 5% of the Sellers shalloutstanding Voting Securities of the Company; (ii) in connection with a merger, and Sellers shall cause their respective controlled Affiliates not toconsolidation, or any transaction or series of transactions which results in the stockholder holding a majority of the outstanding Voting Securities of the Company immediately prior to such transaction(s) no longer holding such Voting Securities of the Company immediately following such transaction(s) (a "Business Combination"), in each case that has been approved of the Board of Directors of the Company; (iii) to purchase Shares issuable pursuant to an Exercise Notice or a Cashless Exercise Notice (in each case, as defined in the Warrants) given in respect of the Warrants, or to purchase shares of Common Stock or any securities convertible or exercisable into Common Stock, or other rights to acquire Common Stock pursuant to Section 12 of the Warrants; or (iv) to acquire Common Stock pursuant to any pro rata stock dividend, stock split, exchange, reclassification or other distribution;
(b) make, or in any way participate, directly or indirectly, in any manner, alone or in concert with others:
"solicitation" of "proxies" (a) solicit, or knowingly encourage or in any way engage in any solicitation of, any proxies or consents or become a “participant” in a “solicitation,” directly or indirectly, as such terms are defined or used in Regulation 14A under the Securities Exchange Act of 1934, as amended (the “Exchange Act”) of proxies or consents (including, without limitation, any solicitation of consents that seeks to call a special meeting of stockholders or by encouraging or participating in any “withhold” or similar campaign), in each case, with respect to securities of the Company or Fifth Street Senior Floating Rate Corp. (“FSFR”1934 Act) or any securities convertible or exchangeable into or exercisable for any such securities (collectivelyto vote, “securities of the Companies”);
(b) make any proposal for consideration by stockholders at public or private statement to any annual third xxxxx xx to how such Restricted Holder intends to vote, or special meeting of the stockholders of the Company or FSFR, whether pursuant seek to Rule 14a-8 under the Exchange Act, either such company’s constituent documents or otherwise;
(c) knowingly advise, encourage, support, instruct advise or influence any person with respect to the voting of, any shares of Common Stock, or become a "participant" in any "election contest" (as such terms are used or defined in Regulation 14A of the matters covered by this Section 3.1 or with respect 1934 Act) relating to the voting or disposition of any securities of the Companies at any annual or special meeting of stockholders of the Company or FSFR, except in accordance with Section 3.4, or seek to do so;
(d) agree, attempt, seek or propose to deposit any securities of the Companies in any voting trust or similar arrangement, or subject any securities of the Companies to any arrangement or agreement with respect to the voting thereof, except in accordance with Section 3.4;
(e) knowingly seek or encourage any person to submit nominations in furtherance of a “contested solicitation” or take other action for the election or removal of directors with respect to the Company or FSFR, including any action that is intended to, or is reasonably likely to result in, the replacement of the investment advisor of the Company or FSFR, or a modification to the terms or conditions of either the Company’s or FSFR’s investment advisory agreement;
(f) form, join in or in any way participate in a partnership, limited partnership, syndicate or other group, including, without limitation, a group as defined under Section 13(d) of the Exchange Act (except such participation related to the reasonable unwinding of any such group currently existing as of the date of this Agreement) with any person who is not identified on Schedule I hereto (any such person, a “Third Party”), with respect to any securities of the Companies or take any other action that would interfere with the ability of Sellers to vote in accordance with this Agreement;
(g) make any disclosure, communication, announcement or statement regarding any intent, purpose, plan or proposal with respect to the FSC Board of Directors (the “Company Board”), the Company investment advisor or the terms and conditions of the Company’s investment advisory agreement, the FSFR Board of Directors (the “FSFR Board”), the FSFR investment advisor or the terms and conditions of FSFR’s investment advisory agreement, the Company, FSFR, or the management, policies or affairs of either the Company or FSFR, or with respect to this Agreement, that is inconsistent with the provisions of this Agreement;
(h) effect or seek to effect, offer or propose to effect, cause or participate in, or in any way assist or facilitate any other person to effect or seek, offer or propose to effect or participate in, any tender or exchange offer, merger, consolidation, acquisition, scheme, arrangement, business combination, recapitalization, reorganization, sale or acquisition of assets, liquidation, dissolution, extraordinary dividend, significant share repurchase or other extraordinary transaction involving the Company, FSFR or either of their investment advisors, or any of their subsidiaries or joint ventures or any of their respective securities (each, an “Extraordinary Transaction”), or make any statement or disclosure regarding any intent, purpose, plan or proposal with respect to any Extraordinary Transaction or this Agreement that is inconsistent with the provisions of this Agreement, including any intent, purpose, plan or proposal that is conditioned on, or would require waiver, amendment, nullification or invalidation of, any provision of this Agreement or take any action that could require the Company or FSFR to make any public disclosure relating to any such intent, purpose, plan, proposal or condition;
(i) (i) call or seek to call or request the calling of any meeting of stockholders at either the Company or FSFR, including by written consent, (ii) seek, alone or in concert with others, representation on, or nominate any candidate to, the Company Board or the FSFR Board, (iii) seek the removal of any member of the Company Board or the FSFR Board, (iv) seek, alone or in concert with others, or support any Third Party in seeking, to replace the investment advisor of the Company or the investment advisor of FSFR, (v) solicit consents from the Company or FSFR stockholders or otherwise act or seek to act by written consent, (vi) conduct a referendum of the Company or FSFR stockholders or (vii) make a request for any stockholders list or any other books and records in Sellers’ capacity as a Company or FSFR stockholder;
(j) purchase or cause to be purchased or otherwise acquire or agree to acquire beneficial ownership of any securities issued by the Company or FSFR, or any securities convertible into or exchangeable for securities issued by the Company or FSFR;
(k) sell, offer to sell, give, pledge, grant a security interest in, encumber, assign, grant any option for the sale of or otherwise transfer or dispose of (each, a “Transfer”) any securities issued by the Company and/or any securities convertible into or exchangeable for securities issued by the Company, unless any Buyer fails to timely perform each of its obligations under Section 1.2(b), Section 1.3(c) and/or Section 1.3(d)(i) of this Agreement;
(l) institute, solicit or join, as a party, or knowingly assist any other person in instituting, soliciting or joining, any litigation, arbitration or other proceeding against the Company or FSFR or any of their current or former directors or officers (including derivative actions), other than (i) litigation to enforce the provisions of this Agreement and (ii) counterclaims with respect to any proceeding initiated by, or on behalf of, a party to this Agreement or FSFR against Sellers;
(m) enter into or engage in any short sale or purchase, sale or grant of any option, warrant, derivative, convertible security, stock appreciation right or other similar right (including, without limitation, any put or call option or swap transaction) with respect to or having any measurement relating to any securities of the Companies;
(n) enter into any negotiations, arrangements, understanding or agreements (whether written or oral) with, or advise, finance, assist, seek to knowingly persuade or encourage, any Third Party to take any action or make any statement in connection with any of the foregoing, or make any investment in or enter into any arrangement with any other person that engages, or offers or proposes to engage, in any of the foregoing, or otherwise take or cause any action or make any statement inconsistent with any of the foregoing; or
(o) take any action challenging the validity or enforceability of this Agreement, or make or in any way advance any request or proposal that the Company, FSFR, the Company Board or the FSFR Board amend, modify or waive any provision of this Agreement.
Appears in 2 contracts
Samples: Rights Agreement (Alion Science & Technology Corp), Rights Agreement (Alion Science & Technology Corp)
Standstill. Effective Each Purchaser agrees that from the date of this Agreement Closing Date until, and continuing until through the later conclusion of, the first annual meeting of the certification of votes Company’s shareholders following the Closing Date for the Company 2017 Annual Meeting election of Stockholders or directors, without the certification of votes for the FSFR (as defined below) 2017 Annual Meeting of Stockholders (the “Standstill Period”), except to the extent expressly permitted by the terms of this Agreement, none prior written approval of the Sellers shallBoard, and Sellers shall cause their respective controlled Affiliates not tosuch Purchaser will not, directly or indirectly:
(a) acquire, in any manneroffer, seek, or propose to acquire, solicit an offer to sell or agree to acquire, directly or indirectly, alone or in concert with others:, by purchase or otherwise, any direct or indirect beneficial interest in any assets of the Company, including without limitation, branches of the Company’s banking network and any voting securities of the Company or direct or indirect rights, warrants or options to acquire, or securities convertible into or exchangeable for, any voting securities of the Company, or any material portion of the assets or liabilities, including without limitation, debt securities or syndicated loans, of the Company;
(ab) solicitmake, or knowingly encourage or in any way engage knowingly participate in, directly or indirectly, alone or in concert with others (including, but not limited to, participation by use of or in coordination with a universal proxy card), any “solicitation” of “proxies” to vote (as such terms are used in the proxy rules of the Commission promulgated pursuant to Section 14 of the Exchange Act) or knowingly seek to advise or knowingly influence in any solicitation ofmanner whatsoever any Person with respect to the voting of any voting securities of the Company, any proxies or consents or otherwise become a “participant” in a “solicitation,” directly or indirectly, as such terms are defined in Instruction 3 of Item 4 of Schedule 14A and Rule 14a-1 of Regulation 14A 14A, respectively, under the Securities Exchange Act of 1934, as amended (the “Exchange Act”) , to vote any securities of proxies or consents the Company (including, without limitationbut not limited to, any solicitation of consents that seeks to call a special meeting of stockholders or by initiating, encouraging or participating in any “withhold” or similar campaign);
(c) form, join, maintain or in each case, any way knowingly participate in a “group” within the meaning of Section 13(d)(3) of the Exchange Act with respect to any voting securities of the Company with respect to matters prohibited by this Section 4.22;
(d) acquire, offer to acquire, seek to acquire or agree to acquire, directly or indirectly, alone or in concert with others, by purchase, exchange or otherwise, (i) all or substantially all of the assets, tangible or intangible, of the Company or any of its subsidiaries, (ii) direct or indirect rights, warrants or options to acquire all or substantially all of the assets of the Company or any of its subsidiaries, except for such assets as are then being offered for sale by the Company;
(e) arrange, or in any way knowingly participate, directly or indirectly, in any financing for the purchase of any voting securities of the Company or Fifth Street Senior Floating Rate Corp. (“FSFR”) or any securities convertible into or exchangeable into or exercisable for any such voting securities (collectively, “securities or assets of the Companies”);
(b) make any proposal for consideration by stockholders at any annual or special meeting of the stockholders of the Company or FSFR, whether pursuant to Rule 14a-8 under the Exchange Act, either such company’s constituent documents or otherwise;
(c) knowingly advise, encourage, support, instruct or influence any person with respect to any of the matters covered by this Section 3.1 or with respect to the voting or disposition of any securities of the Companies at any annual or special meeting of stockholders of the Company or FSFRCompany, except in accordance with Section 3.4, or seek to do so;
(d) agree, attempt, seek or propose to deposit any securities of the Companies in any voting trust or similar arrangement, or subject any securities of the Companies to any arrangement or agreement with respect to the voting thereof, except in accordance with Section 3.4;
(e) knowingly seek or encourage any person to submit nominations in furtherance of a “contested solicitation” or take other action for the election or removal of directors with respect to the Company or FSFR, including any action that is intended to, or is reasonably likely to result in, the replacement of the investment advisor of the Company or FSFR, or a modification to the terms or conditions of either such assets as are then being offered for sale by the Company’s or FSFR’s investment advisory agreement;
(f) formotherwise act, join in alone or in any way participate in a partnershipconcert with others, limited partnership, syndicate or other group, including, without limitation, a group as defined under Section 13(d) of the Exchange Act (except such participation related to the reasonable unwinding of any such group currently existing as of the date of this Agreement) with any person who is not identified on Schedule I hereto (any such person, a “Third Party”), with respect knowingly seek to any securities of the Companies or take any other action that would interfere with the ability of Sellers propose to vote in accordance with this Agreement;
(g) make any disclosure, communication, announcement or statement regarding any intent, purpose, plan or proposal with respect to the FSC Board of Directors (the “Company Board”), the Company investment advisor or the terms and conditions of the Company’s investment advisory agreement, the FSFR Board of Directors (the “FSFR Board”), the FSFR investment advisor or the terms and conditions of FSFR’s investment advisory agreement, the Company, FSFR, or the management, policies or affairs of either the Company or FSFRany of its shareholders, or with respect to this Agreement, that is inconsistent with the provisions of this Agreement;
(h) effect or seek to effect, offer or propose to effect, cause or participate in, or in any way assist or facilitate any other person to effect or seek, offer or propose to effect or participate indicate an interest in, any tender or exchange offer, merger, consolidation, acquisition, scheme, arrangement, business combination, recapitalization, reorganization, sale form of tender or acquisition exchange offer for any voting securities of assets, liquidation, dissolution, extraordinary dividend, significant share repurchase or other extraordinary transaction involving the Company, FSFR restructuring, recapitalization or either of their investment advisors, other transaction to or any of their subsidiaries or joint ventures or any of their respective securities (each, an “Extraordinary Transaction”), or make any statement or disclosure regarding any intent, purpose, plan or proposal with respect to any Extraordinary Transaction or this Agreement that is inconsistent with the provisions of this Agreement, including any intent, purpose, plan or proposal that is conditioned on, or would require waiver, amendment, nullification or invalidation of, any provision of this Agreement or take any action that could require the Company or FSFR to make any public disclosure relating to any such intent, purpose, plan, proposal or condition;
(i) (i) call or seek to call or request the calling of any meeting of stockholders at either the Company or FSFR, including by written consent, (ii) otherwise seek, alone or in concert with others, representation onto control, change or nominate any candidate toinfluence the management, the Company Board board of directors or the FSFR Board, (iii) seek the removal of any member of the Company Board or the FSFR Board, (iv) seek, alone or in concert with others, or support any Third Party in seeking, to replace the investment advisor policies of the Company or nominate any Person as a director who is not nominated by the investment advisor of FSFRthen incumbent directors, (v) solicit consents from or propose any matter to be voted upon by the Company or FSFR stockholders or otherwise act or seek to act by written consent, (vi) conduct a referendum shareholders of the Company or FSFR stockholders or (vii) make a request for any stockholders list or any other books and records in Sellers’ capacity as a Company or FSFR stockholderCompany;
(jg) purchase make any request or cause proposal to be purchased amend, waive or otherwise acquire or agree to acquire beneficial ownership terminate any provision of any securities issued by the Company or FSFR, or any securities convertible into or exchangeable for securities issued by the Company or FSFR;
(k) sell, offer to sell, give, pledge, grant a security interest in, encumber, assign, grant any option for the sale of or otherwise transfer or dispose of (each, a “Transfer”) any securities issued by the Company and/or any securities convertible into or exchangeable for securities issued by the Companythis Section 4.22, unless any Buyer fails such request or proposal would not be reasonably likely to timely perform each result in a violation of its obligations under Section 1.2(b), Section 1.3(c) and/or Section 1.3(d)(iclause (h) of this Agreement;Section 4.22; or
(lh) institute, solicit or join, as a party, or knowingly assist any other person in instituting, soliciting or joining, any litigation, arbitration or other proceeding against the Company or FSFR or any of their current or former directors or officers (including derivative actions), other than (i) litigation to enforce the provisions of this Agreement and (ii) counterclaims with respect to any proceeding initiated by, or on behalf of, a party to this Agreement or FSFR against Sellers;
(m) enter into or engage in any short sale or purchase, sale or grant of any option, warrant, derivative, convertible security, stock appreciation right or other similar right (including, without limitation, any put or call option or swap transaction) with respect to or having any measurement relating to any securities of the Companies;
(n) enter into any negotiations, arrangements, understanding or agreements (whether written or oral) with, or advise, finance, assist, seek to knowingly persuade or encourage, any Third Party to take any action or that would reasonably result in the Company being required under applicable law to make any statement in connection with a public announcement regarding any of the foregoingmatters referred to in clauses (a) through (g) of this Section 4.22, or make any investment in announce an intention to do, or enter into any arrangement or understanding or discussions with any other person that engagesor advice, knowingly assist or offers or proposes knowingly encourage others to engagedo, in any of the foregoingactions restricted or prohibited under such clauses (a) through (g) of this this Section 4.22. provided, however, that nothing in this Section 4.22 will limit (1) such Purchaser’s or otherwise take its Affiliates’ ability to transfer (subject to Section 4.1) or cause any action convert shares of Series B Preferred Stock into Common Stock or make any statement inconsistent Non-Voting Common Stock (subject to applicable provisions in the Series B Preferred Stock Statement with any Respect to Shares), (2) Castle Creek’s or its Affiliates’ ability to exercise the Warrant pursuant to the terms of the foregoing; or
Warrant Agreement or exercise its rights pursuant to Section 4.18 and Section 4.19, (o3) take any action challenging such Purchaser’s or its Affiliates’ ability to confidentially request a waiver of the validity or enforceability provisions of this Agreement, or Section 4.22 to privately make or in and submit to the Board any way advance any request offer or proposal that is intended by such Purchaser to be made and submitted on a non-publicly disclosed or announced basis (and would not reasonably be expected to require public disclosure by any Person) or (4) the Company, FSFR, ability of the Company Board Representative to vote or otherwise exercise his or her legal duties or otherwise act in his or her capacity as a member of the FSFR Board amend, modify or waive any provision of this AgreementBoard.
Appears in 2 contracts
Samples: Securities Purchase Agreement (Republic First Bancorp Inc), Securities Purchase Agreement (Republic First Bancorp Inc)
Standstill. Effective from Without the date of this Agreement and continuing until the later approval or written consent of the certification Board of votes for the Company 2017 Annual Meeting of Stockholders or the certification of votes for the FSFR (as defined below) 2017 Annual Meeting of Stockholders (the “Standstill Period”), except to the extent expressly permitted by the terms of this AgreementDirectors, none of the Sellers General Atlantic Stockholders or any of their Affiliates, and none of the Coinvestor Stockholders or any of their respective Affiliates shall, severally and Sellers not jointly, at any time prior to the Standstill Expiration Date:
(a) purchase or otherwise acquire, or propose or offer to purchase or acquire, any shares of the Company's capital stock, whether by tender offer, market purchase, privately negotiated purchase, merger or otherwise, any shares of the Company's capital stock or any Common Stock Equivalents in excess of the number of shares of the Company's capital stock and Common Stock Equivalents purchased pursuant to the Stock Purchase Agreement (subject to adjustments and issuances of additional Common Stock Equivalents pursuant to the Amended and Restated Certificate of Determination with respect to the Series D Preferred Stock) and the Convertible Note Purchase and Exchange Agreement (subject to adjustments and issuances of additional Common Stock Equivalents pursuant to the Certificate of Determination with respect to the Series E Stock) with respect to each such Stockholder and its Affiliates considered severally and not jointly with any other Stockholder and its Affiliates (the "Standstill Ceiling"); provided, however, that in no event shall cause their respective controlled any such Stockholder acquire any Shares in a transaction in such an amount that when aggregated with the shares of the Company's capital stock already owned by such Stockholder, the acquisition of such shares of the Company's capital stock would require stockholder approval under applicable Nasdaq rules and policies; and provided, further, that the dividends that accrue on the shares of Series D Preferred Stock and Series E Preferred Stock pursuant to the terms thereof shall be excluded for purposes of calculating whether or not a Stockholder and its Affiliates not tohave exceeded the Standstill Ceiling;
(b) except as specified in this Agreement, make, or in any way participate, directly or indirectly, in any manner, alone or in concert with others:
"solicitation" of "proxy" (a) solicit, or knowingly encourage or in any way engage in any solicitation of, any proxies or consents or become a “participant” in a “solicitation,” directly or indirectly, as such terms are defined or used in Regulation 14A under of the Securities Exchange Act of 1934, as amended (the “Exchange Act”) of proxies to vote, or consents (including, without limitation, seek to advise or influence any solicitation of consents that seeks to call a special meeting of stockholders or by encouraging or participating in any “withhold” or similar campaign), in each case, Person with respect to securities the voting of, any shares of the Company Company's capital stock, or Fifth Street Senior Floating Rate Corp. become a "participant" in any "election contest" (“FSFR”) as such terms are used or any securities convertible or exchangeable into or exercisable for any such securities (collectively, “securities defined in Regulation 14A of the Companies”);
(b) make any proposal for consideration by stockholders at any annual or special meeting of the stockholders of the Company or FSFR, whether pursuant to Rule 14a-8 under the Exchange Act) relating to the election of directors of the Company; provided, either such company’s constituent documents however, that none of the General Atlantic Stockholders, the Coinvestor Stockholders or otherwiseany of their respective Affiliates shall be deemed to have engaged in a "solicitation" or to have become a "participant" by reason of the membership of designees of the General Atlantic Stockholders, the Coinvestor Stockholders or any of their respective Affiliates on the Board of Directors;
(c) knowingly advise, encourage, support, instruct or influence any person with respect to any of the matters covered by this Section 3.1 or with respect to the voting or disposition of any securities of the Companies at any annual or special meeting of stockholders of the Company or FSFR, except in accordance with Section 3.4, or seek to do so;
(d) agree, attempt, seek or propose to deposit any securities of the Companies in any voting trust or similar arrangement, or subject any securities of the Companies to any arrangement or agreement with respect to the voting thereof, except in accordance with Section 3.4;
(e) knowingly seek or encourage any person to submit nominations in furtherance of a “contested solicitation” or take other action for the election or removal of directors with respect to the Company or FSFR, including any action that is intended to, or is reasonably likely to result in, the replacement of the investment advisor of the Company or FSFR, or a modification to the terms or conditions of either the Company’s or FSFR’s investment advisory agreement;
(f) form, join in or in any way participate in a partnership"group" (within the meaning of Section 13(d)(3) of the Exchange Act) or otherwise act in concert with any Person for the purpose of acquiring, limited partnershipholding, syndicate voting or other disposing of any shares of the Company's capital stock; provided, however, that (i) the General Atlantic Stockholders may act as a group for the purpose of acquiring, holding, voting or disposing of any shares of the Company's capital stock, (ii) Vectis CP Holdings, LLC and any Affiliate thereof that acquires shares of the Company's capital stock (the "Vectis Stockholders") may act as a group for the purpose of acquiring, holding, voting or disposing of any shares of the Company's capital stock, (iii) Cenwell Limited, Campina Enterprises Limited, Great Affluent Limited, Dragonfield Limited, or Lion Cosmos Limited or any Affiliate thereof that acquires shares of the Company's capital stock (the "Coinvestor Sub-group") may act as a group for the purpose of acquiring, holding, voting or disposing of any shares of the Company's capital stock; and provided further, that, for the avoidance of doubt, the General Atlantic Stockholders, the Vectis Stockholders and the Coinvestor Sub-group may not together act as a group for the purpose of acquiring, holding, voting or disposing of any shares of the Company's capital stock; or
(d) request the Company (or its directors, officers, employees or agents), to take any action which would reasonably be expected to require pursuant to law the Company to make a public announcement or proposal or offer with respect to (i) any form of business combination or transaction involving the Company including, without limitation, a group as defined under Section 13(d) of the Exchange Act (except such participation related to the reasonable unwinding of any such group currently existing as of the date of this Agreement) with any person who is not identified on Schedule I hereto (any such personmerger, a “Third Party”)consolidation, with respect to any securities of the Companies or take any other action that would interfere with the ability of Sellers to vote in accordance with this Agreement;
(g) make any disclosure, communication, announcement or statement regarding any intent, purpose, plan or proposal with respect to the FSC Board of Directors (the “Company Board”), the Company investment advisor or the terms and conditions of the Company’s investment advisory agreement, the FSFR Board of Directors (the “FSFR Board”), the FSFR investment advisor or the terms and conditions of FSFR’s investment advisory agreement, the Company, FSFR, or the management, policies or affairs of either the Company or FSFR, or with respect to this Agreement, that is inconsistent with the provisions of this Agreement;
(h) effect or seek to effect, offer or propose to effect, cause or participate in, or in any way assist or facilitate any other person to effect or seek, offer or propose to effect or participate in, any tender or exchange offer, merger, consolidation, acquisition, scheme, arrangement, business combination, recapitalization, reorganization, sale or acquisition purchase of assets, liquidation, dissolution, extraordinary dividend, significant share repurchase or other extraordinary transaction involving the Company, FSFR dissolution or either of their investment advisors, or any of their subsidiaries or joint ventures or any of their respective securities (each, an “Extraordinary Transaction”), or make any statement or disclosure regarding any intent, purpose, plan or proposal with respect to any Extraordinary Transaction or this Agreement that is inconsistent with the provisions of this Agreement, including any intent, purpose, plan or proposal that is conditioned on, or would require waiver, amendment, nullification or invalidation of, any provision of this Agreement or take any action that could require the Company or FSFR to make any public disclosure relating to any such intent, purpose, plan, proposal or condition;
(i) (i) call or seek to call or request the calling of any meeting of stockholders at either the Company or FSFR, including by written consent, (ii) seek, alone or in concert with others, representation on, or nominate any candidate to, the Company Board or the FSFR Board, (iii) seek the removal of any member of the Company Board or the FSFR Board, (iv) seek, alone or in concert with others, or support any Third Party in seeking, to replace the investment advisor liquidation of the Company or the investment advisor of FSFR, (v) solicit consents from the Company or FSFR stockholders or otherwise act or seek to act by written consent, (vi) conduct a referendum of the Company or FSFR stockholders or (vii) make a request for any stockholders list or any other books and records in Sellers’ capacity as a Company or FSFR stockholder;
(j) purchase or cause to be purchased or otherwise acquire or agree to acquire beneficial ownership of any securities issued by the Company or FSFR, or any securities convertible into or exchangeable for securities issued by the Company or FSFR;
(k) sell, offer to sell, give, pledge, grant a security interest in, encumber, assign, grant any option for the sale of or otherwise transfer or dispose of (each, a “Transfer”) any securities issued by the Company and/or any securities convertible into or exchangeable for securities issued by the Company, unless any Buyer fails to timely perform each of its obligations under Section 1.2(b), Section 1.3(c) and/or Section 1.3(d)(i) of this Agreement;
(l) institute, solicit or join, as a party, or knowingly assist any other person in instituting, soliciting or joining, any litigation, arbitration or other proceeding against the Company or FSFR or any of their current or former directors or officers (including derivative actions), other than (i) litigation to enforce the provisions of this Agreement and (ii) counterclaims with respect instigate, encourage or assist any Person to any proceeding initiated by, or on behalf of, a party to this Agreement or FSFR against Sellers;
(m) enter into or engage in any short sale or purchase, sale or grant of any option, warrant, derivative, convertible security, stock appreciation right or other similar right (including, without limitation, any put or call option or swap transaction) with respect to or having any measurement relating to any securities of the Companies;
(n) enter into any negotiations, arrangements, understanding or agreements (whether written or oral) with, or advise, finance, assist, seek to knowingly persuade or encourage, any Third Party to take any action or make any statement in connection with do any of the foregoing, or make any investment in or enter into any arrangement with any other person that engages, or offers or proposes to engage, in any of the foregoing, or otherwise take or cause any action or make any statement inconsistent with any of the foregoing; or
(o) take any action challenging the validity or enforceability of this Agreement, or make or in any way advance any request or proposal that the Company, FSFR, the Company Board or the FSFR Board amend, modify or waive any provision of this Agreement.
Appears in 2 contracts
Samples: Stockholders Agreement (Critical Path Inc), Stockholders Agreement (Critical Path Inc)
Standstill. Effective from (a) As used in this Agreement, “Standstill Period” means the period commencing on the date of this Agreement and continuing until ending at 11:59 p.m. (eastern time) on July 1, 2018. During the later Standstill Period, the Stockholders irrevocably agree that they will not take any of the certification of votes for the Company 2017 Annual Meeting of Stockholders or the certification of votes for the FSFR (as defined below) 2017 Annual Meeting of Stockholders (the “Standstill Period”), except to the extent expressly permitted by the terms of this Agreement, none of the Sellers shall, and Sellers shall cause their respective controlled Affiliates not tofollowing actions, directly or indirectly, in any manner, alone or in concert with others:
(ai) solicitsolicit proxies or written consents of the Company’s shareholders or any other person with the right to vote or power to give or withhold consent in respect of any of the Common Stock, or knowingly encourage conduct, encourage, participate or engage in any other type of referendum (binding or non-binding) with respect to, or from the holders of, the Common Stock or any other person with the right to vote or power to give or withhold consent in respect of the Common Stock, make, or in any way participate or engage in any solicitation ofin, any proxies or consents or become a “participant” in a “solicitation,” directly of any proxy, consent or indirectly, other authority (as such terms are defined in Regulation 14A under the Securities Exchange Act of 1934, as amended 1934 (the “Exchange Act”) of proxies to vote any Common Stock or consents (including, without limitation, any solicitation of consents that seeks to call a special meeting of stockholders or by encouraging or participating in any “withhold” or similar campaign), in each case, with respect to securities of the Company or Fifth Street Senior Floating Rate Corp. (“FSFR”) or any securities convertible or exchangeable into or exercisable for any such securities (collectively, “securities of the Companies”);
(b) make any shareholder proposal for consideration by stockholders at any annual or special meeting of the stockholders of the Company or FSFR, (whether pursuant to Rule 14a-8 promulgated under the Exchange Act, either such company’s constituent documents Act or otherwise;
(c) knowingly advise, encourage, support, instruct or influence any person with respect to any of the matters covered by this Section 3.1 matter, or become a participant in any contested solicitation with respect to the voting Company, including without limitation relating to the removal or disposition the election of any securities of the Companies at any annual or special meeting of stockholders of the Company or FSFR, except in accordance with Section 3.4, or seek to do sodirectors;
(dii) agree, attempt, seek form or propose to deposit any securities of the Companies in any voting trust or similar arrangement, or subject any securities of the Companies to any arrangement or agreement with respect to the voting thereof, except in accordance with Section 3.4;
(e) knowingly seek or encourage any person to submit nominations in furtherance of a “contested solicitation” or take other action for the election or removal of directors with respect to the Company or FSFR, including any action that is intended to, or is reasonably likely to result in, the replacement of the investment advisor of the Company or FSFR, or a modification to the terms or conditions of either the Company’s or FSFR’s investment advisory agreement;
(f) form, join in or in any way participate in a partnership, limited partnership, syndicate syndicate, entity or other group, including, including without limitation, limitation a group “group” as defined under Section 13(d) of the Exchange Act (except such participation related to the reasonable unwinding of any such group currently existing as of the date of this Agreement) with any person who is not identified on Schedule I hereto (any such person, a “Third Party”)Act, with respect to the Common Stock (other than any securities group composed solely of either of the Companies Stockholders and their respective affiliates), or take otherwise directly or indirectly support or participate in any other action effort by a third party with respect to any of the matters prohibited by this Section 3 provided, however, that would interfere with nothing contained in this Section 3 shall limit the ability of Sellers an affiliate of either of the Stockholders to vote in accordance with join the “group” following the execution of this Agreement;
(g) make , so long as any disclosure, communication, announcement or statement regarding any intent, purpose, plan or proposal with respect such affiliate agrees to the FSC Board of Directors (the “Company Board”), the Company investment advisor or be bound by the terms and conditions of the Company’s investment advisory agreement, the FSFR Board of Directors (the “FSFR Board”), the FSFR investment advisor or the terms and conditions of FSFR’s investment advisory agreement, the Company, FSFR, or the management, policies or affairs of either the Company or FSFR, or with respect to this Agreement, that is inconsistent with the provisions of this Agreement;
(hiii) effect without the prior approval of the Board contained in a written resolution of the Board, as a result of acquiring beneficial ownership of or economic interest in any Common Stock of the Company, become a beneficial owner (either individually or as part of any “group” as defined under Section 13(d) under the Exchange Act) of, or have an economic interest in, any Common Stock of the Company which would be deemed under Rule 13d-3(c) promulgated under the Exchange Act to constitute a number of shares of Common Stock in excess of the greater of 8.0% of the then issued and outstanding shares of Common Stock of the Company and 4,767,992 shares of Common Stock of the Company (subject to adjustment for stock splits, reclassifications, combinations and similar adjustments);
(iv) present at any meeting of the shareholders of the Company any proposal for consideration for action by shareholders or seek to effect(including pursuing or encouraging any “withhold” or similar campaign) the removal of any member of the Board;
(v) other than in sale transactions on the open market or through a broker or dealer where the identity of the purchaser is not known and in underwritten widely dispersed public offerings, knowingly sell, offer or propose agree to effectsell 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 Stockholders to any person or entity not a party to this Agreement that will, as a result of the transaction, acquire beneficial ownership of or economic interest in more than 5.0% of the then issued and outstanding shares of Common Stock of the Company;
(A) make, directly or indirectly for itself or its Affiliates or in conjunction with any other person or entity, or cause or participate in, any offer or in proposal (with or without conditions) with respect to any way merger, acquisition, recapitalization, restructuring, reorganization, tender offer, exchange offer, disposition or other business combination involving the Company or any of its subsidiaries or affiliates or a material amount of assets or securities of the Company or any of its subsidiaries or affiliates,
(B) affirmatively solicit a third party to make or modify an offer or proposal (with or without conditions) with respect to any merger, acquisition, recapitalization, restructuring, reorganization, tender offer, exchange offer, disposition or other business combination involving the Company or any of its subsidiaries or affiliates or a material amount of assets or securities of the Company or any of its subsidiaries or affiliates, or encourage, initiate, support, assist or facilitate any other person to effect third party in making or seek, modifying such an offer or propose to effect or participate inproposal, or
(C) publicly comment on any third party proposal regarding any merger, acquisition, recapitalization, restructuring, reorganization, tender or offer, exchange offer, merger, consolidation, acquisition, scheme, arrangement, business combination, recapitalization, reorganization, sale or acquisition of assets, liquidation, dissolution, extraordinary dividend, significant share repurchase disposition or other extraordinary transaction business combination involving the Company, FSFR or either of their investment advisors, Company or any of their its subsidiaries or joint ventures affiliates or a material amount of assets or securities of the Company or any of their respective securities (each, an “Extraordinary Transaction”), its subsidiaries or make any statement or disclosure regarding any intent, purpose, plan or proposal with respect to any Extraordinary Transaction or this Agreement that is inconsistent with the provisions of this Agreement, including any intent, purpose, plan or proposal that is conditioned on, or would require waiver, amendment, nullification or invalidation of, any provision of this Agreement or take any action that could require the Company or FSFR to make any public disclosure relating to any such intent, purpose, plan, proposal or conditionaffiliates;
(i) (i) call or seek to call or request the calling of any meeting of stockholders at either the Company or FSFR, including by written consent, (iivii) seek, alone or in concert with others, representation onon the Board (except as provided in this Agreement), or nominate propose any candidate to, nominee for election to the Company Board or seek representation on the FSFR Board, or otherwise seek to advise, influence or control the management, governance, policies, business or affairs (iiior any change thereof) of the Company;
(viii) seek to advise, encourage, support or influence any person or entity with respect to the removal voting of any member Common Stock at any meeting of the Company Board or the FSFR Board, (iv) seek, alone or in concert with others, or support any Third Party in seeking, to replace the investment advisor shareholders of the Company Company;
(ix) grant any proxy, consent or other authority to vote with respect to any matters (other than to the investment advisor of FSFR, (v) solicit consents from named proxies included in the Company or FSFR stockholders or otherwise act or seek to act by written consent, (vi) conduct a referendum Company’s proxy card for any meeting of the Company shareholders of the Company) or FSFR stockholders deposit any Common Stock in any voting trust or subject any Common Stock to any arrangement or agreement with respect to the voting of any Common Stock;
(viix) make a request any further requests for any stockholders stockholder list materials or any other books and records in Sellers’ capacity as a of the Company under Section 220 of the Delaware General Corporation Law or FSFR stockholderotherwise;
(jxi) purchase or cause to be purchased or otherwise acquire or agree to acquire beneficial ownership of any securities issued other than litigation by the Company or FSFR, or any securities convertible into or exchangeable for securities issued by Stockholders to enforce the Company or FSFR;
(k) sell, offer to sell, give, pledge, grant a security interest in, encumber, assign, grant any option for the sale of or otherwise transfer or dispose of (each, a “Transfer”) any securities issued by the Company and/or any securities convertible into or exchangeable for securities issued by the Company, unless any Buyer fails to timely perform each of its obligations under Section 1.2(b), Section 1.3(c) and/or Section 1.3(d)(i) provisions of this Agreement;
(l) , institute, solicit solicit, assist or join, as a party, or knowingly assist any other person in instituting, soliciting or joining, any litigation, arbitration or other proceeding against or involving the Company or FSFR or any of their its current or former directors or officers (including derivative actions), other than (i) litigation to enforce the provisions of this Agreement and (ii) counterclaims with respect to any proceeding initiated by, or on behalf of, a party to this Agreement or FSFR against Sellers;
(mxii) enter into disclose that the Stockholders voted or engage in any short sale or purchase, sale or grant of any option, warrant, derivative, convertible security, stock appreciation right or other similar right (including, without limitation, any put or call option or swap transaction) with respect intend to or having any measurement relating vote contrary to any securities the recommendation of the CompaniesBoard;
(nxiii) request, directly or indirectly, any amendment or waiver of the foregoing in a manner that would reasonably likely require public disclosure by the Stockholders or the Company; or
(xiv) enter into any negotiations, arrangementsagreements, understanding arrangements or agreements (whether written or oral) with, or advise, finance, assist, seek to knowingly persuade or encourage, any Third Party to take any action or make any statement in connection understandings with any third party with respect to the matters set forth in this Section 3 (except as provided in this Agreement).
(b) Except as expressly provided in Section 3(a), the Stockholders shall be entitled to:
(i) vote their respective shares on any other proposal duly brought before any meeting of the foregoing, or make any investment in or enter into any arrangement with any other person that engages, or offers or proposes to engage, in any shareholders of the foregoing, Company or otherwise take or cause any action or make any statement inconsistent with any of vote as the foregoingStockholders determines in their respective sole discretion; orand
(oii) take disclose, publicly or otherwise, how they intend to vote or act with respect to any action challenging the validity or enforceability securities of this Agreement, or make or in any way advance any request or proposal that the Company, FSFR, any shareholder proposal or other matters to be voted on by the shareholders of the Company Board or and the FSFR Board amend, modify or waive any provision of this Agreementreasons therefor.
Appears in 2 contracts
Samples: Settlement Agreement (Krensavage Asset Management, LLC), Settlement Agreement (Rti Surgical, Inc.)
Standstill. Effective from From the date of this Agreement and continuing until the later of Expiration Date or until such earlier time as the certification of votes for the Company 2017 Annual Meeting of Stockholders or the certification of votes for the FSFR (as defined below) 2017 Annual Meeting of Stockholders (the “Standstill Period”), except restrictions in this paragraph 9 terminate pursuant to the extent expressly permitted by the terms of this Agreement, none of the Sellers shalleach BW Party shall not, and Sellers shall cause its Affiliates and Associates and their respective controlled Affiliates principals, directors, general partners, officers, employees, and agents and representatives acting on their behalf not to, directly or indirectly, in any manner, alone absent prior express written invitation or in concert with othersauthorization on behalf of the Board:
(a) solicit, or knowingly encourage or in any way engage in any solicitation of, any proxies or consents or become a “participant” in a “solicitation,” directly or indirectly, (as such terms are term is defined in Regulation 14A under the Securities Exchange Act of 1934, as amended and the rules promulgated thereunder (the “Exchange Act”)) of proxies or consents (including, without limitation, any solicitation of consents that seeks to call a special meeting of stockholders or by encouraging or participating in any “withhold” or similar campaign), in each case, with respect to securities of the Company or Fifth Street Senior Floating Rate Corp. (“FSFR”) or any securities convertible or exchangeable into or exercisable for any such securities (collectively, “securities of the Companies”);
(b) make any proposal for consideration by stockholders at any annual or special meeting of the stockholders of the Company or FSFR, whether pursuant to Rule 14a-8 under the Exchange Act, either such company’s constituent documents or otherwise;
(c) knowingly advise, encourage, support, instruct or influence any person with respect to any of the matters covered by this Section 3.1 or with respect to the voting or disposition of any securities of the Companies at any annual or special meeting of stockholders of the Company or FSFR, except in accordance with Section 3.4, or seek to do so;
(d) agree, attempt, seek or propose to deposit any securities of the Companies in any voting trust or similar arrangement, or subject any securities of the Companies to any arrangement or agreement with respect to the voting thereof, except in accordance with Section 3.4;
(e) knowingly seek or encourage any person to submit nominations in furtherance of a “contested solicitation” or take other action for the election or removal of members of the Board or the board of directors of any Affiliate of the Company (an “Affiliate Board”) or any other matter or proposal or become a “participant” (as such term is defined in Instruction 3 to Item 4 of Schedule 14A promulgated under the Exchange Act) in any such solicitation of proxies or consents;
b) knowingly encourage, advise or knowingly influence any Third Party or knowingly assist any Third Party in so knowingly encouraging, advising or knowingly influencing any Third Party with respect to the Company giving or FSFRwithholding of any proxy, including any action consent or other authority to vote (other than such encouragement, advice or influence that is intended to, or is reasonably likely to result in, consistent with the replacement of the investment advisor of the Company or FSFR, or a modification to the terms or conditions of either the CompanyBoard’s or FSFRany Affiliate Board’s investment advisory agreementrecommendation in connection with such matter);
(fc) form, join or act in or in concert with any way participate in a partnership, limited partnership, syndicate or other group, including, without limitation, including a group “group” as defined under pursuant to Section 13(d) of the Exchange Act (except such participation related to and the reasonable unwinding of any such group currently existing as of the date of this Agreement) rules promulgated thereunder, with any entity or person who is not identified on Schedule I hereto (any such person, a “Third Party”), unaffiliated with the BW Parties and with respect to any securities of the Companies or take any other action that would interfere with the ability of Sellers to vote in accordance with this AgreementVoting Securities;
(gd) make any disclosure, communication, announcement or statement regarding any intent, purpose, plan or proposal with respect to the FSC Board of Directors (the “Company Board”), the Company investment advisor or the terms and conditions of the Company’s investment advisory agreement, the FSFR Board of Directors (the “FSFR Board”), the FSFR investment advisor or the terms and conditions of FSFR’s investment advisory agreement, the Company, FSFR, or the management, policies or affairs of either the Company or FSFR, or with respect to this Agreement, that is inconsistent with the provisions of this Agreement;
(h) effect or seek to effect, offer or propose to effect, cause or participate in, or in any way assist participate, directly or facilitate any other person to effect or seekindirectly, offer or propose to effect or participate in, in any tender or offer, exchange offer, merger, consolidation, acquisition, scheme, arrangement, business combination, sale of a division, sale of substantially all assets, recapitalization, reorganization, sale or acquisition of assetsrestructuring, liquidation, dissolution, extraordinary dividend, significant share repurchase dissolution or other extraordinary transaction involving the Company, FSFR or either of their investment advisors, Company or any of their its subsidiaries or joint ventures Affiliates or any of its or their respective securities or assets (each, an “Extraordinary Transaction”)) (it being understood that the foregoing shall not restrict the BW Parties or any of its Affiliates or Associates from tendering (or failing to tender) shares, receiving payment or other consideration for shares, voting its shares “for” or “against” any Extraordinary Transaction, or make otherwise participating in any statement or disclosure regarding any intent, purpose, plan or proposal with respect to any Extraordinary Transaction or this Agreement that is inconsistent with such transaction on the provisions same basis as other stockholders of this Agreement, including any intent, purpose, plan or proposal that is conditioned onthe Company, or would require waiver, amendment, nullification or invalidation of, any provision of this Agreement or take any action that could require the Company or FSFR to make any public disclosure relating to from participating in any such intent, purpose, plan, proposal or conditiontransaction that has been approved by the Board);
(i) seek, alone or in concert with others, election or appointment to, or representation on, the Board or an Affiliate Board or nominate or propose the nomination of, or recommend the nomination of, any candidate to the Board or an Affiliate Board (i) call or seek to call or request the calling of any meeting of stockholders at either the Company or FSFR, including by written consentexcept as otherwise permitted in this Agreement), (ii) seek, alone or in concert with others, representation onor knowingly encourage any Person to seek, or nominate any candidate to, the Company Board or the FSFR Board, (iii) seek the removal of any member of the Company Board or an Affiliate Board, or (iii) request that, or knowingly encourage any Person to request that, the FSFR BoardCompany or an Affiliate of the Company call any meeting of such company’s stockholders, (iv) seekpresent any matter at any meeting of the Company’s or any of its Affiliates’ stockholders, or (v) conduct, or knowingly encourage any Person to conduct, a referendum of the Company’s or any of its Affiliate’s stockholders;
f) make or be the proponent of any stockholder proposal (pursuant to Rule 14a-8 under the Exchange Act or otherwise) to the Company or any of its Affiliates;
g) make any request for stock list materials or other books and records of the Company or any of its Affiliates under the Maryland General Corporation Law, the laws of the jurisdiction of any such Affiliate’s organization or formation or other statutory or regulatory provisions providing for stockholder access to books and records;
h) except as set forth herein, make any public proposal with respect to (i) any change in the number or term of directors or the filling of any vacancies on the Board or an Affiliate Board, (ii) any material change in the capitalization of the Company or any of its Affiliates, (iii) any other material change in the Company’s or any of its Affiliate’s management, business or corporate structure, or (iv) any waiver, amendment or modification to the Company’s Charter or Bylaws or the governing documents of any of its Affiliates; i) enter into any negotiations, agreements or understandings with any Third Party to take any action that a BW Party is prohibited from taking pursuant to this paragraph 9; j) make, directly or indirectly, any proposal, either alone or in concert with others, to the Company, its Affiliates, the Board or support an Affiliate Board that would reasonably be expected to require a public announcement inconsistent with the provisions of this paragraph 9;
k) make any Third Party in seekingpublic request or submit any public proposal, directly or indirectly, to replace amend or waive the investment advisor terms of this Agreement, in each case which would reasonably be expected to require a public announcement of such request or proposal;
l) sell, offer or agree to sell, in each case, through swap, hedging or other derivative transactions, the securities of the Company or the investment advisor of FSFR, (v) solicit consents any rights decoupled from the Company or FSFR stockholders or otherwise act or seek underlying securities held by a BW Party to act by written consentany Person; provided that, (vithe foregoing restrictions in this paragraph 9(l) conduct a referendum of shall terminate automatically upon the Company or FSFR stockholders or (vii) make a request for any stockholders list or any other books and records in Sellers’ capacity as a Company or FSFR stockholder;
(j) purchase or cause to be purchased or otherwise acquire or agree to acquire beneficial ownership liquidation of any securities issued joint venture contemplated by the Company or FSFRJV Agreement, or any securities convertible into or exchangeable for securities issued by if not earlier terminated pursuant to the Company or FSFR;
(k) sell, offer to sell, give, pledge, grant a security interest in, encumber, assign, grant any option for the sale of or otherwise transfer or dispose of (each, a “Transfer”) any securities issued by the Company and/or any securities convertible into or exchangeable for securities issued by the Company, unless any Buyer fails to timely perform each of its obligations under Section 1.2(b), Section 1.3(c) and/or Section 1.3(d)(i) terms of this Agreement;
(lm) enter into a voting trust, arrangement or agreement or subject any securities of the Company to any voting trust, arrangement or agreement; or n) institute, solicit solicit, assist or join, as a party, or knowingly assist any other person in instituting, soliciting or joining, join any litigation, arbitration or other proceeding against or involving the Company or FSFR Company, its Affiliates or any of their respective current or former directors or officers (including derivative actions)) in order to effect or take any of the actions expressly prohibited by this paragraph 9; provided, other than that the restrictions in this paragraph 9 shall terminate automatically on the earlier of (i) litigation to enforce the provisions of this Agreement Expiration Date and (ii) counterclaims with respect to as a non-exclusive remedy for any proceeding initiated by, or on behalf of, a party to material breach of this Agreement or FSFR against Sellers;
(m) enter into or engage in any short sale or purchase, sale or grant of any option, warrant, derivative, convertible security, stock appreciation right or other similar right by the Company (including, without limitation, a failure to appoint the New Director and otherwise constitute the Board in accordance with paragraph 1 or a failure to issue the Company Press Release in accordance with paragraph 8), upon ten (10) business days’ prior written notice by either of the BW Parties following any put or call option or swap transactionsuch material breach of this Agreement by the Company if such breach has not been cured within such notice period, provided that a BW Party is not in material breach of this Agreement at the time such notice is given (such periods contemplated by (i) and (ii), the “Restricted Period”); provided further, that the restrictions in this paragraph 9 shall not apply with respect to or having any measurement relating (x) the announcement by the Company of a definitive agreement with respect to any securities Extraordinary Transaction that would directly or indirectly result in the acquisition of beneficial ownership by any person or group of more than 50% of the Companies;
(n) enter into any negotiations, arrangements, understanding Voting Securities or agreements (whether written all or oral) withsubstantially all of the Company’s assets, or advise(y) the commencement of any tender or exchange offer (by a person other than a BW Party or their respective Affiliates) which, financeif consummated, assistwould constitute an Extraordinary Transaction that would directly or indirectly result in the acquisition of beneficial ownership by any person or group of more than 50% of the Voting Securities, seek where the Company files a Schedule 14D-9 (or any amendment thereto), other than a “stop, look and listen” communication by the Company pursuant to knowingly persuade Rule 14d-9(f) promulgated under the Exchange Act, that does not recommend that the Company’s stockholders reject such tender or encourageexchange offer. Nothing contained in this paragraph 9 shall prevent a BW Party from (i) privately communicating with the Company or the Board (so long as such private communication does not require public disclosure by the Company or a BW Party), and (ii) making any public or private statement or announcement with respect to an Extraordinary Transaction that is publicly announced by the Company or a Third Party. Nothing in this Agreement shall prevent (a) the Company from responding to such a BW Party statements described in clause (ii) of the preceding sentence, subject to take the obligations of the Parties under paragraph 10, or (b) the Company or a BW Party from making any action factual statement as required by applicable legal process, subpoena, or make legal requirement or as part of a response to a request for information from any statement in connection governmental authority with jurisdiction over the Party from whom information is sought (so long as such request did not arise as a result of discretionary acts by a BW Party or any Affiliate of a BW Party or by the Company or any of its Affiliates, as applicable). Notwithstanding anything to the foregoing, or make any investment contrary in or enter into any arrangement with any other person that engages, or offers or proposes to engage, in any of the foregoing, or otherwise take or cause any action or make any statement inconsistent with any of the foregoing; or
(o) take any action challenging the validity or enforceability of this Agreement, nothing in this paragraph 9 shall prohibit or make restrict the New Director from exercising his or in any way advance any request her rights and fiduciary duties as a director of the Company or proposal that restrict his or her discussions solely among other members of the Board and/or management, advisors, representatives or agents of the Company, FSFR, the Company Board or the FSFR Board amend, modify or waive any provision of this Agreement.
Appears in 2 contracts
Samples: Cooperation Agreement (Colony Capital, Inc.), Cooperation Agreement (Colony Capital, Inc.)
Standstill. Effective from the date of this Agreement and continuing until the later of the certification of votes for the Company 2017 Annual Meeting of Stockholders or the certification of votes for the FSFR (as defined below) 2017 Annual Meeting of Stockholders (the “Standstill Period”), except to the extent expressly permitted by the terms of this Agreement, none of the Sellers shall, and Sellers shall cause their respective controlled Affiliates not to, directly or indirectly, in any manner, alone or in concert with others:
(a) solicitDuring the Standstill Period, without the prior written approval of a majority of the Independent Directors, Freeport shall not, and shall not permit its controlled affiliates to: (i) acquire, offer or propose to acquire, or knowingly encourage agree or seek to acquire, or solicit the acquisition of, by purchase or otherwise, any equity, debt or equity-linked securities of the Issuer if, following such acquisition, Freeport and its controlled affiliates would own securities of the Issuer representing more than 103% of the percentage of the outstanding shares of Common Stock (including shares of Common Stock issuable upon conversion of any Preferred Shares owned by Freeport and its controlled affiliates) owned by Freeport and its controlled affiliates on the date hereof (including shares of Common Stock issuable upon conversion of any Preferred Shares owned by Freeport and its controlled affiliates); (ii) form, join or in any way engage participate in, or enter into any agreement, arrangement or understanding with, a “group” (within the meaning of Section 13(d)(3) of the Exchange Act and the rules and regulations thereunder) with respect to any equity or equity-linked securities of the Issuer; (iii) commence any tender or exchange offer for any securities of the Issuer; (iv) enter into or agree, offer, propose or seek (whether publicly or otherwise) to enter into, or otherwise be involved in any solicitation or part of, any proxies acquisition transaction, merger or consents other business combination relating to all or become a “participant” in a “solicitation,” directly part of the Issuer or indirectly, as such terms are defined in Regulation 14A under any of its subsidiaries or any acquisition transaction for all or part of the Securities Exchange Act assets of 1934, as amended the Issuer or any of its subsidiaries or any of their respective businesses; (the “Exchange Act”v) of proxies call or consents (including, without limitation, any solicitation of consents that seeks seek to call a special meeting of stockholders or by encouraging or participating in any “withhold” or similar campaign), in each case, with respect to securities of the Company or Fifth Street Senior Floating Rate Corp. (“FSFR”) or any securities convertible or exchangeable into or exercisable for any such securities (collectively, “securities of the Companies”);
(b) make any proposal for consideration by stockholders at any annual or special meeting of the stockholders of the Company Issuer or FSFRinitiate any stockholder proposal for action by stockholders of the Issuer; (vi) enter into any discussions, whether pursuant to Rule 14a-8 under the Exchange Actnegotiations, either such company’s constituent documents arrangements or otherwise;
(c) knowingly advise, encourage, support, instruct or influence understandings with any other person with respect to any of the matters covered by this Section 3.1 foregoing activities; (vii) advise, assist, encourage, act as a financing source for or with respect to the voting or disposition of any securities of the Companies at any annual or special meeting of stockholders of the Company or FSFR, except otherwise invest in accordance with Section 3.4, or seek to do so;
(d) agree, attempt, seek or propose to deposit any securities of the Companies in any voting trust or similar arrangement, or subject any securities of the Companies to any arrangement or agreement with respect to the voting thereof, except in accordance with Section 3.4;
(e) knowingly seek or encourage any person to submit nominations in furtherance of a “contested solicitation” or take other action for the election or removal of directors with respect to the Company or FSFR, including any action that is intended to, or is reasonably likely to result in, the replacement of the investment advisor of the Company or FSFR, or a modification to the terms or conditions of either the Company’s or FSFR’s investment advisory agreement;
(f) form, join in or in any way participate in a partnership, limited partnership, syndicate or other group, including, without limitation, a group as defined under Section 13(d) of the Exchange Act (except such participation related to the reasonable unwinding of any such group currently existing as of the date of this Agreement) with any person who is not identified on Schedule I hereto (any such person, a “Third Party”), with respect to any securities of the Companies or take any other action that would interfere with the ability of Sellers to vote in accordance with this Agreement;
(g) make any disclosure, communication, announcement or statement regarding any intent, purpose, plan or proposal with respect to the FSC Board of Directors (the “Company Board”), the Company investment advisor or the terms and conditions of the Company’s investment advisory agreement, the FSFR Board of Directors (the “FSFR Board”), the FSFR investment advisor or the terms and conditions of FSFR’s investment advisory agreement, the Company, FSFR, or the management, policies or affairs of either the Company or FSFR, or with respect to this Agreement, that is inconsistent with the provisions of this Agreement;
(h) effect or seek to effect, offer or propose to effect, cause or participate in, or in any way assist or facilitate any other person to effect or seek, offer or propose to effect or participate in, any tender or exchange offer, merger, consolidation, acquisition, scheme, arrangement, business combination, recapitalization, reorganization, sale or acquisition of assets, liquidation, dissolution, extraordinary dividend, significant share repurchase or other extraordinary transaction involving the Company, FSFR or either of their investment advisors, or any of their subsidiaries or joint ventures or any of their respective securities (each, an “Extraordinary Transaction”), or make any statement or disclosure regarding any intent, purpose, plan or proposal with respect to any Extraordinary Transaction or this Agreement that is inconsistent with the provisions of this Agreement, including any intent, purpose, plan or proposal that is conditioned on, or would require waiver, amendment, nullification or invalidation of, any provision of this Agreement or take any action that could require the Company or FSFR to make any public disclosure relating to any such intent, purpose, plan, proposal or condition;
(i) (i) call or seek to call or request the calling of any meeting of stockholders at either the Company or FSFR, including by written consent, (ii) seek, alone or in concert with others, representation on, or nominate any candidate to, the Company Board or the FSFR Board, (iii) seek the removal of any member of the Company Board or the FSFR Board, (iv) seek, alone or in concert with others, or support any Third Party in seeking, to replace the investment advisor of the Company or the investment advisor of FSFR, (v) solicit consents from the Company or FSFR stockholders or otherwise act or seek to act by written consent, (vi) conduct a referendum of the Company or FSFR stockholders or (vii) make a request for any stockholders list or any other books and records in Sellers’ capacity as a Company or FSFR stockholder;
(j) purchase or cause to be purchased or otherwise acquire or agree to acquire beneficial ownership of any securities issued by the Company or FSFR, or any securities convertible into or exchangeable for securities issued by the Company or FSFR;
(k) sell, offer to sell, give, pledge, grant a security interest in, encumber, assign, grant any option for the sale of or otherwise transfer or dispose of (each, a “Transfer”) any securities issued by the Company and/or any securities convertible into or exchangeable for securities issued by the Company, unless any Buyer fails to timely perform each of its obligations under Section 1.2(b), Section 1.3(c) and/or Section 1.3(d)(i) of this Agreement;
(l) institute, solicit or join, as a party, or knowingly assist any other person in instituting, soliciting or joining, any litigation, arbitration or other proceeding against the Company or FSFR or any of their current or former directors or officers (including derivative actions), other than (i) litigation to enforce the provisions of this Agreement and (ii) counterclaims with respect to any proceeding initiated by, or on behalf of, a party to this Agreement or FSFR against Sellers;
(m) enter into or engage in any short sale or purchase, sale or grant of any option, warrant, derivative, convertible security, stock appreciation right or other similar right (including, without limitation, any put or call option or swap transaction) with respect to or having any measurement relating to any securities of the Companies;
(n) enter into any negotiations, arrangements, understanding or agreements (whether written or oral) with, or advise, finance, assist, seek to knowingly persuade or encourage, any Third Party to take any action or make any statement in connection with any of the foregoing, or make any investment in or enter into any arrangement with any other person that engages, or offers or proposes to engage, in any of the foregoing, or otherwise foregoing activities; (viii) take or cause any action inconsistent with the purpose and intent of this Section 2.3; (ix) disclose any intention, plan or make any statement arrangement inconsistent with any of the foregoing, (x) with respect to any of the foregoing provisions of this paragraph, request the Issuer to amend or waive any such provisions or otherwise consent to any action inconsistent with any such provisions; or
(oxi) take any initiative with respect to the Issuer which could require the Issuer to make a public announcement regarding (A) such initiative or (B) any of the foregoing activities; or (xii) bring any action challenging or otherwise act to contest the validity or enforceability of this Section 2.3.
(b) Notwithstanding anything to the contrary set forth in this Agreement, the members of Freeport’s Board of Directors who are not also Shared Management Members shall be permitted to communicate on a confidential basis with the Independent Directors regarding any matter, including potential transactions between Freeport and the Issuer and potential waivers or make or in any way advance any request or proposal that amendments to the Company, FSFR, the Company Board or the FSFR Board amend, modify or waive any provision terms of this Agreement.
(c) Each of the Parties agrees that any supplement, modification, amendment, or waiver by the Issuer of the terms or provisions of that certain Stockholder Agreement, dated as of December 30, 2010, by and between the Issuer and Plains, with respect to a transaction, arrangement or understanding involving both Plains or its controlled affiliates and Freeport or its controlled affiliates must be approved in writing in advance by a committee of the Board consisting solely of members of the Board who are Independent Directors.
Appears in 2 contracts
Samples: Shareholder Agreement (McMoran Exploration Co /De/), Shareholder Agreement (Freeport McMoran Copper & Gold Inc)
Standstill. Effective from the date of this Agreement and continuing until the later Each of the certification members of votes for the Simcoe Group agrees that, during the Standstill Period and provided that the Company 2017 Annual Meeting of Stockholders has complied and is complying with the Principal Obligations, he or the certification of votes for the FSFR (as defined below) 2017 Annual Meeting of Stockholders (the “Standstill Period”), except to the extent expressly permitted by the terms of this Agreement, none of the Sellers shallit will not, and Sellers shall he or it will cause their respective controlled each of such person’s Affiliates or agents or other persons acting on his or its behalf not to, directly and will cause his or indirectly, in any manner, alone or in concert with othersits respective Associates not to:
(a) solicit, or knowingly encourage or in submit any way engage in any solicitation of, any proxies or consents or become a “participant” in a “solicitation,” directly or indirectly, as such terms are defined in Regulation 14A stockholder proposal (pursuant to Rule 14a-8 promulgated by the SEC under the Securities Exchange Act of 1934, as amended (the “Exchange Act”) of proxies or consents (including, without limitation, any solicitation of consents that seeks to call a special meeting of stockholders or by encouraging or participating in any “withhold” or similar campaign), in each case, with respect to securities of the Company or Fifth Street Senior Floating Rate Corp. (“FSFR”otherwise) or any securities convertible notice of nomination or exchangeable into other business for consideration, or exercisable nominate any candidate for any such securities (collectivelyelection to the Board, “securities of the Companies”)other than as expressly permitted by this Agreement;
(b) make any proposal for consideration by stockholders at any annual or special meeting of the stockholders of the Company or FSFR, whether pursuant to Rule 14a-8 under the Exchange Act, either such company’s constituent documents or otherwise;
(c) knowingly advise, encourage, support, instruct or influence any person with respect to any of the matters covered by this Section 3.1 or with respect to the voting or disposition of any securities of the Companies at any annual or special meeting of stockholders of the Company or FSFR, except in accordance with Section 3.4, or seek to do so;
(d) agree, attempt, seek or propose to deposit any securities of the Companies in any voting trust or similar arrangement, or subject any securities of the Companies to any arrangement or agreement with respect to the voting thereof, except in accordance with Section 3.4;
(e) knowingly seek or encourage any person to submit nominations in furtherance of a “contested solicitation” or take other action for the election or removal of directors with respect to the Company or FSFR, including any action that is intended to, or is reasonably likely to result in, the replacement of the investment advisor of the Company or FSFR, or a modification to the terms or conditions of either the Company’s or FSFR’s investment advisory agreement;
(f) form, join in or in any other way participate in a “partnership, limited partnership, syndicate or other group, including, without limitation, a group as defined under ” within the meaning of Section 13(d13(d)(3) of the Exchange Act (except such participation related to the reasonable unwinding of any such group currently existing as of the date of this Agreement) with any person who is not identified on Schedule I hereto (any such person, a “Third Party”), with respect to any securities of the Companies or take any other action that would interfere with the ability of Sellers to vote in accordance with this Agreement;
(g) make any disclosure, communication, announcement or statement regarding any intent, purpose, plan or proposal with respect to the FSC Board Common Stock or deposit any shares of Directors (the “Company Board”)Common Stock in a voting trust or similar arrangement or subject any shares of Common Stock to any voting agreement or pooling arrangement, the Company investment advisor or the terms and conditions other than solely with other members of the Company’s investment advisory agreement, Simcoe Group or one or more Affiliates of a member of the FSFR Board Simcoe Group with respect to the Common Stock currently owned as set forth in Section 2(c) of Directors (this Agreement or to the “FSFR Board”), the FSFR investment advisor or the terms and conditions of FSFR’s investment advisory agreement, the Company, FSFR, or the management, policies or affairs of either extent such a group may be deemed to result with the Company or FSFR, or with respect to this Agreement, that is inconsistent with the provisions any of its Affiliates as a result of this Agreement;
(hc) solicit proxies or written consents of stockholders, or otherwise conduct any nonbinding referendum with respect to Common Stock, or make, or in any way participate in, any “solicitation” of any “proxy” within the meaning of Rule 14a-1 promulgated by the SEC under the Exchange Act to vote, or advise, encourage or influence any person with respect to voting, any shares of Common Stock with respect to any matter, or become a “participant” in any contested “solicitation” for the election of directors with respect to the Company (as such terms are defined or used under the Exchange Act and the rules promulgated by the SEC thereunder), other than a “solicitation” or acting as a “participant” in support of all of the nominees of the Board at the 2010 and 2011 Annual Meetings of Stockholders.
(d) seek, in any capacity other than as a member of the Board, to call, or to request the call of, a special meeting of the stockholders of the Company, or seek to make, or make, a stockholder proposal at any meeting of the stockholders of the Company or make a request for a list of the Company’s stockholders (or otherwise induce, encourage or assist any other person to initiate or pursue such a proposal or request) or otherwise acting alone, or in concert with others, seek to control or influence the governance or policies of the Company, except as expressly permitted by this Agreement;
(e) effect or seek to effect, in any capacity other than as a member of the Board (including, without limitation, by 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 or facilitate any other person to effect or seek, offer or propose (whether publicly or otherwise) to effect or cause or participate inin (i) any acquisition of any material assets or businesses of the Company or any of its subsidiaries, (ii) any tender offer or exchange offer, merger, consolidationacquisition or other business combination involving the Company or any of its subsidiaries, acquisition, scheme, arrangement, business combination, or (iii) any recapitalization, reorganization, sale or acquisition of assetsrestructuring, liquidation, dissolution, extraordinary dividend, significant share repurchase dissolution or other extraordinary transaction involving with respect to the Company, FSFR or either of their investment advisors, Company or any of their subsidiaries its subsidiaries;
(f) publicly disclose, or joint ventures cause or facilitate the public disclosure (including without limitation the filing of any document or report with the SEC or any other governmental agency or any disclosure to any journalist, member of their respective the media or securities (eachanalyst) of, an “Extraordinary Transaction”), or make any statement or disclosure regarding any intent, purpose, plan or proposal with respect to obtain any Extraordinary Transaction waiver, or this Agreement that is inconsistent with consent under, or any amendment of, any of the provisions of Section 4(d) or this Agreement, including any intent, purpose, plan or proposal that is conditioned onSection 5, or otherwise seek (in any manner that would require public disclosure by any of the members of the Simcoe Group or their Affiliates or Associates) to obtain any waiver, amendmentconsent under, nullification or invalidation amendment of, any provision of this Agreement or take any action that could require the Company or FSFR to make any public disclosure relating to any such intent, purpose, plan, proposal or conditionAgreement;
(ig) (i) call or seek to call or request the calling of any meeting of stockholders at either the Company or FSFR, including by written consent, (ii) seek, alone or in concert with others, representation on, or nominate any candidate to, the Company Board or the FSFR Board, (iii) seek the removal of publicly disparage any member of the Company Board or the FSFR Board, (iv) seek, alone or in concert with others, or support any Third Party in seeking, to replace the investment advisor management of the Company or the investment advisor of FSFR, (v) solicit consents from the Company or FSFR stockholders or otherwise act or seek to act by written consent, (vi) conduct a referendum of the Company or FSFR stockholders or (vii) make a request for any stockholders list or any other books and records in Sellers’ capacity as a Company or FSFR stockholderCompany;
(j) purchase or cause to be purchased or otherwise acquire or agree to acquire beneficial ownership of any securities issued by the Company or FSFR, or any securities convertible into or exchangeable for securities issued by the Company or FSFR;
(k) sell, offer to sell, give, pledge, grant a security interest in, encumber, assign, grant any option for the sale of or otherwise transfer or dispose of (each, a “Transfer”) any securities issued by the Company and/or any securities convertible into or exchangeable for securities issued by the Company, unless any Buyer fails to timely perform each of its obligations under Section 1.2(b), Section 1.3(c) and/or Section 1.3(d)(i) of this Agreement;
(l) institute, solicit or join, as a party, or knowingly assist any other person in instituting, soliciting or joining, any litigation, arbitration or other proceeding against the Company or FSFR or any of their current or former directors or officers (including derivative actions), other than (i) litigation to enforce the provisions of this Agreement and (ii) counterclaims with respect to any proceeding initiated by, or on behalf of, a party to this Agreement or FSFR against Sellers;
(m) enter into or engage in any short sale or purchase, sale or grant of any option, warrant, derivative, convertible security, stock appreciation right or other similar right (including, without limitation, any put or call option or swap transaction) with respect to or having any measurement relating to any securities of the Companies;
(nh) enter into any negotiations, arrangements, understanding understandings or agreements (whether written or oral) with, or advise, finance, assist, seek to knowingly persuade assist or encourage, any Third Party to take any action or make any statement in connection with any of the foregoing, or make any investment in or enter into any arrangement with any other person that engages, or offers or proposes to engage, in any of the foregoing, or otherwise ; or
(i) take or cause or induce or assist others to take any action or make any statement inconsistent with any of the foregoing; or
(o) take any action challenging the validity or enforceability of . It is understood and agreed that this Agreement, or make or Agreement shall not be deemed to prohibit Xxxxxxxxxx from engaging in any way advance any request or proposal that lawful act in his capacity as a director of the Company, FSFR, the Company Board or the FSFR Board amend, modify or waive any provision of this Agreement.
Appears in 2 contracts
Samples: Board Member Agreement (Alloy Inc), Board Member Agreement (Alloy Inc)
Standstill. Effective from the date of this Agreement and continuing until the later of the certification of votes for the Company 2017 Annual Meeting of Stockholders or the certification of votes for the FSFR (Except as defined below) 2017 Annual Meeting of Stockholders (the “Standstill Period”), except to the extent expressly permitted contemplated by the terms of this Agreement, none without the prior written consent of the Sellers shallBoard, during the Commitment Period, each member of the Stockholder Group shall not, and Sellers shall cause their respective controlled Affiliates its Representatives not to, directly or indirectly, in any manner, alone or in concert with others:
(a) solicit(i) acquire, offer or agree to acquire, or knowingly encourage acquire rights to acquire (except by way of stock dividends or in any way engage in any solicitation ofother distributions or offerings made available to holders of voting securities of the Company generally on a pro rata basis), any proxies or consents or become a “participant” in a “solicitation,” directly or indirectly, whether by purchase, tender or exchange offer, through the acquisition of control of another person, by joining a group, through swap or hedging transactions or otherwise, any voting securities of the Company or any voting rights decoupled from the underlying voting securities which would result in the Stockholder Group and its Representatives (together with any other person or group) owning, controlling or otherwise having any beneficial ownership interest in 15.0% or more of the then-outstanding shares of the Common Stock; or (ii) knowingly sell, offer or agree to sell, all or substantially all, directly or indirectly, through swap or hedging transactions or otherwise, the voting securities of the Company or any voting rights decoupled from the underlying voting securities held by the Stockholder Group and its Representatives to (A) any Third Party which would result in such Third Party, together with its Representatives, having any beneficial ownership interest of 5.0% or more of the then-outstanding shares of Common Stock (except for Schedule 13G filers that are mutual funds, pension funds or index funds or similar passive institutional investors with no known history of activism); or (B) Lone Star Value Investors, LP or any of its affiliates and associates (“Lone Star Value”).
(b) except as such terms contemplated by Section 1(g) of this Agreement, (i) nominate or recommend for nomination a person for election at any Stockholder Meeting at which directors of the Board are defined to be elected or any solicitation of written consents of stockholders of the Company to remove any directors of the Board; (ii) initiate, encourage or participate in Regulation 14A under the Securities Exchange Act of 1934, as amended (the “Exchange Act”) any solicitation of proxies or consents in respect of any election contest or removal contest with respect to the Company’s directors; (includingiii) submit any stockholder proposal for consideration at, without limitationor bring any other business before, any Stockholder Meeting; (iv) initiate, encourage or participate in any solicitation of proxies or consents that seeks to call a special meeting in respect of stockholders any stockholder proposal for consideration at, or by encouraging bring any other business before, any Stockholder Meeting; (v) initiate, encourage or participating participate in any solicitation of written consents of stockholders; or (vi) initiate, encourage or participate in any “withhold” or similar campaign), in each case, campaign with respect to securities of the Company or Fifth Street Senior Floating Rate Corp. (“FSFR”) any Stockholder Meeting or any securities convertible or exchangeable into or exercisable for any such securities (collectively, “securities solicitation of the Companies”);
(b) make any proposal for consideration by stockholders at any annual or special meeting written consents of the stockholders of the Company or FSFR, whether pursuant to Rule 14a-8 under the Exchange Act, either such company’s constituent documents or otherwisestockholders;
(c) knowingly adviseexcept as contemplated by Section 1(g) of this Agreement, encourageform, support, instruct join or influence in any person way participate in any group with respect to any voting securities of the matters covered by this Section 3.1 Company in connection with any election or removal contest with respect to the voting or disposition of any securities Company’s directors (other than with other members of the Companies at Stockholder Group or one or more of their affiliates to the extent that any annual or special meeting of stockholders of such person signs a joinder to this Agreement reasonably agreeable to the Company or FSFR, except in accordance with Section 3.4, or seek to do soCompany);
(d) agreeexcept as contemplated by Section 2(a) of this Agreement, attempt, seek or propose to deposit any Company voting securities of the Companies in any voting trust or similar arrangement, or subject any Company voting securities of the Companies to any arrangement or agreement with respect to the voting thereof, except in accordance with Section 3.4;
(e) knowingly seek except as contemplated by Section 2(a) of this Agreement, seek, alone or encourage in concert with others, to amend any person to submit nominations in furtherance provision of a “contested solicitation” or take other action for the election or removal of directors with respect to the Company or FSFR, including any action that is intended to, or is reasonably likely to result in, the replacement of the investment advisor of the Company or FSFR, or a modification to the terms or conditions of either the Company’s articles of incorporation or FSFR’s investment advisory agreementBylaws; provided, however, that nothing herein shall be deemed to restrict the ability of Xx. Xxxxxxxxx to propose any changes he deems appropriate in accordance with his fiduciary duties as a director of the Company;
(f) form, join in or in any way participate in a partnership, limited partnership, syndicate or other group, including, without limitation, a group except as defined under contemplated by Section 13(d2(a) of the Exchange Act (except such participation related to the reasonable unwinding of any such group currently existing as of the date of this Agreement) with any person who is not identified on Schedule I hereto (any such person, a “Third Party”), with respect to any securities of the Companies or take any other action that would interfere with the ability of Sellers to vote in accordance with this Agreement;
(g) make any disclosure, communication, announcement or statement regarding any intent, purpose, plan or proposal with respect to the FSC Board of Directors (the “Company Board”), the Company investment advisor or the terms and conditions of the Company’s investment advisory agreement, the FSFR Board of Directors (the “FSFR Board”), the FSFR investment advisor or the terms and conditions of FSFR’s investment advisory agreement, the Company, FSFR, or the management, policies or affairs of either the Company or FSFR, or with respect to this Agreement, that is inconsistent with the provisions of this Agreement;
(h) effect or seek to effect, offer or propose to effect, cause or participate in, or in any way assist or facilitate any other person to effect or seek, offer or propose to effect or participate in, any acquisition of 15.0% or more of any securities, or any material assets or businesses, of the Company or any of its subsidiaries; any tender offer or exchange offer, merger, consolidation, acquisition, scheme, arrangement, share exchange or other business combination, combination involving 15.0% or more of any of the voting securities or any of the material assets or businesses of the Company or any of its subsidiaries; or any recapitalization, reorganization, sale or acquisition of assetsrestructuring, liquidation, dissolution, extraordinary dividend, significant share repurchase dissolution or other extraordinary transaction involving with respect to the Company, FSFR or either of their investment advisors, Company or any of their its subsidiaries or joint ventures any material portion of its or any of their respective securities (each, an “Extraordinary Transaction”), or make any statement or disclosure regarding any intent, purpose, plan or proposal with respect to any Extraordinary Transaction or this Agreement that is inconsistent with the provisions of this Agreement, including any intent, purpose, plan or proposal that is conditioned on, or would require waiver, amendment, nullification or invalidation of, any provision of this Agreement or take any action that could require the Company or FSFR to make any public disclosure relating to any such intent, purpose, plan, proposal or condition;businesses; or
(i) (i) call or seek to call or request the calling of any meeting of stockholders at either the Company or FSFR, including by written consent, (ii) seek, alone or in concert with others, representation on, or nominate any candidate to, the Company Board or the FSFR Board, (iii) seek the removal of any member of the Company Board or the FSFR Board, (iv) seek, alone or in concert with others, or support any Third Party in seeking, to replace the investment advisor of the Company or the investment advisor of FSFR, (v) solicit consents from the Company or FSFR stockholders or otherwise act or seek to act by written consent, (vi) conduct a referendum of the Company or FSFR stockholders or (vii) make a request for any stockholders list or any other books and records in Sellers’ capacity as a Company or FSFR stockholder;
(j) purchase or cause to be purchased or otherwise acquire or agree to acquire beneficial ownership of any securities issued by the Company or FSFR, or any securities convertible into or exchangeable for securities issued by the Company or FSFR;
(k) sell, offer to sell, give, pledge, grant a security interest in, encumber, assign, grant any option for the sale of or otherwise transfer or dispose of (each, a “Transfer”) any securities issued by the Company and/or any securities convertible into or exchangeable for securities issued by the Company, unless any Buyer fails to timely perform each of its obligations under Section 1.2(b), Section 1.3(c) and/or Section 1.3(d)(i) of this Agreement;
(l) institute, solicit or join, as a party, or knowingly assist any other person in instituting, soliciting or joining, any litigation, arbitration or other proceeding against the Company or FSFR or any of their current or former directors or officers (including derivative actions), other than (i) litigation to enforce the provisions of this Agreement and (ii) counterclaims with respect to any proceeding initiated by, or on behalf of, a party to this Agreement or FSFR against Sellers;
(m) enter into or engage in any short sale or purchase, sale or grant of any option, warrant, derivative, convertible security, stock appreciation right or other similar right (including, without limitation, any put or call option or swap transaction) with respect to or having any measurement relating to any securities of the Companies;
(ng) enter into any discussions, negotiations, arrangements, understanding agreements or agreements (whether written or oral) withunderstandings with any Third Party with respect to the foregoing, or advise, finance, assist, encourage or seek to knowingly persuade or encourage, any Third Party to take any action or make any statement in connection with any of the foregoing, or make any investment in or enter into any arrangement with any other person that engages, or offers or proposes respect to engage, in any of the foregoing, or otherwise take or cause any action or make any statement inconsistent with any of the foregoing; or
(o) take any action challenging the validity or enforceability of this Agreement, or make or in any way advance any request or proposal that the Company, FSFR, the Company Board or the FSFR Board amend, modify or waive any provision of this Agreement.
Appears in 2 contracts
Samples: Stockholder Agreement (Stevenson Bobby G), Stockholder Agreement (Ciber Inc)
Standstill. Effective from the date of this Agreement and continuing until the later of the certification of votes for the Company 2017 Annual Meeting of Stockholders or the certification of votes for the FSFR (Except as defined below) 2017 Annual Meeting of Stockholders (the “Standstill Period”), except to the extent expressly permitted by the terms of otherwise provided in this Agreement, none without the prior written consent of the Sellers shallBoard, the Stockholders shall not, and Sellers shall cause instruct their respective controlled Affiliates Representatives not to, directly or indirectlyindirectly (in each case, in any manner, alone or in concert with others:except as permitted by this Agreement):
(a) solicit(i) acquire, offer or agree to acquire, or acquire rights to acquire (except by way of stock dividends or other distributions or offerings made available to holders of voting securities of the Company generally on a pro rata basis), whether by purchase, tender or exchange offer, through the acquisition of control of another person, by joining a group, through swap or hedging transactions or otherwise, any voting securities of the Company or any voting rights decoupled from the underlying voting securities; or (ii) knowingly sell, offer or agree to sell, through swap or hedging transactions or otherwise, the voting securities of the Company or any voting rights decoupled from the underlying voting securities held by the Stockholders to any Third Party that would result in such Third Party having any beneficial ownership interest of 5.0% or more of the then-outstanding shares of Common Stock (except for Schedule 13G filers that are mutual funds, pension funds or index funds with no known history of activism);
(b) (i) nominate or recommend for nomination a person for election at any Stockholder Meeting at which the Company’s directors are to be elected; (ii) initiate, knowingly encourage or in any way engage participate in any solicitation ofof proxies in respect of any election contest or removal contest with respect to the Company’s directors; (iii) submit any stockholder proposal for consideration at, or bring any other business before, any proxies Stockholder Meeting; (iv) initiate, knowingly encourage or consents or become a “participant” participate in a “solicitation,” directly or indirectly, as such terms are defined in Regulation 14A under the Securities Exchange Act of 1934, as amended (the “Exchange Act”) of proxies or consents (including, without limitation, any solicitation of consents that seeks proxies in respect of any stockholder proposal for consideration at, or other business brought before, any Stockholder Meeting: (v) knowingly encourage or participate in any request to call a special meeting of the stockholders of the Company; or by encouraging (vi) initiate, knowingly encourage or participating participate in any “withhold” or similar campaign), in each case, campaign with respect to securities of the Company or Fifth Street Senior Floating Rate Corp. (“FSFR”any Stockholder Meeting; provided, however, that, except as set forth in Section 2(b) or any securities convertible Section 3, nothing in this Section 5(b) will be interpreted to restrict the Stockholders’ ability to (A) privately recommend candidates for the Board or exchangeable into or exercisable for any such securities (collectively, “securities of the Companies”);
(bB) make vote their shares on any proposal for consideration by duly brought before the Company’s stockholders at any annual or special meeting of the stockholders of the Company or FSFR, whether pursuant to Rule 14a-8 under the Exchange Act, either such company’s constituent documents or otherwiseas each Stockholder determines in his sole discretion;
(c) knowingly adviseform, encourage, support, instruct join or influence in any person way participate in any group with respect to any voting securities of the matters covered by this Section 3.1 Company in connection with any election or removal contest with respect to the voting Company’s directors (other than with the Stockholders or disposition one or more of their Affiliates to the extent that any securities of such person signs a joinder to this Agreement reasonably acceptable to the Companies at any annual or special meeting of stockholders of the Company or FSFR, except in accordance with Section 3.4, or seek to do soCompany);
(d) agree, attempt, seek or propose to deposit any voting securities of the Companies Company in any voting trust or similar arrangement, or subject any Company voting securities of the Companies to any arrangement or agreement with respect to the voting thereof, except in accordance with Section 3.4other than any such voting trust, arrangement or agreement solely among the Stockholders and one or more of their Affiliates;
(e) knowingly seek publicly, alone or encourage in concert with others, to amend any person to submit nominations in furtherance provision of a “contested solicitation” or take other action for the election or removal of directors with respect to the Company or FSFR, including any action that is intended to, or is reasonably likely to result in, the replacement of the investment advisor of the Company or FSFR, or a modification to the terms or conditions of either the Company’s articles of incorporation or FSFR’s investment advisory agreementbylaws;
(f) form, join in or in any way participate in a partnership, limited partnership, syndicate or other group, including, without limitation, a group as defined under Section 13(d) demand an inspection of the Exchange Act (except such participation related to the reasonable unwinding of any such group currently existing as of the date of this Agreement) with any person who is not identified on Schedule I hereto (any such person, a “Third Party”), with respect to any securities of the Companies or take any other action that would interfere with the ability of Sellers to vote in accordance with this AgreementCompany’s books and records;
(g) make any disclosure, communication, announcement or statement regarding any intent, purpose, plan or proposal with respect to the FSC Board of Directors (the “Company Board”), the Company investment advisor or the terms and conditions of the Company’s investment advisory agreement, the FSFR Board of Directors (the “FSFR Board”), the FSFR investment advisor or the terms and conditions of FSFR’s investment advisory agreement, the Company, FSFR, or the management, policies or affairs of either the Company or FSFR, or with respect to this Agreement, that is inconsistent with the provisions of this Agreement;
(h) effect or seek to effect, offer or propose to effect, cause or participate in, or in any way knowingly assist or facilitate any other person to effect or seek, offer or propose to effect or participate in, any (i) acquisition of any securities, or any material assets or businesses, of the Company or any of its subsidiaries; (ii) tender offer or exchange offeroffer (except as specifically contemplated by this Agreement), merger, consolidation, acquisition, scheme, arrangement, share exchange or other business combination, combination involving any of the voting securities or any of the material assets or businesses of the Company or any of its subsidiaries; or (iii) recapitalization, reorganization, sale or acquisition of assetsrestructuring, liquidation, dissolution, extraordinary dividend, significant share repurchase dissolution or other extraordinary transaction involving with respect to the Company, FSFR or either of their investment advisors, Company or any of their its subsidiaries or joint ventures any material portion of its or any of their respective securities (each, an “Extraordinary Transaction”), or make any statement or disclosure regarding any intent, purpose, plan or proposal with respect to any Extraordinary Transaction or this Agreement that is inconsistent with the provisions of this Agreement, including any intent, purpose, plan or proposal that is conditioned on, or would require waiver, amendment, nullification or invalidation of, any provision of this Agreement or take any action that could require the Company or FSFR to make any public disclosure relating to any such intent, purpose, plan, proposal or conditionbusinesses;
(i) (i) call or seek to call or request the calling of any meeting of stockholders at either the Company or FSFR, including by written consent, (ii) seek, alone or in concert with others, representation on, or nominate any candidate to, the Company Board or the FSFR Board, (iii) seek the removal of any member of the Company Board or the FSFR Board, (iv) seek, alone or in concert with others, or support any Third Party in seeking, to replace the investment advisor of the Company or the investment advisor of FSFR, (v) solicit consents from the Company or FSFR stockholders or otherwise act or seek to act by written consent, (vi) conduct a referendum of the Company or FSFR stockholders or (vii) make a request for any stockholders list or any other books and records in Sellers’ capacity as a Company or FSFR stockholder;
(j) purchase or cause to be purchased or otherwise acquire or agree to acquire beneficial ownership of any securities issued by the Company or FSFR, or any securities convertible into or exchangeable for securities issued by the Company or FSFR;
(k) sell, offer to sell, give, pledge, grant a security interest in, encumber, assign, grant any option for the sale of or otherwise transfer or dispose of (each, a “Transfer”) any securities issued by the Company and/or any securities convertible into or exchangeable for securities issued by the Company, unless any Buyer fails to timely perform each of its obligations under Section 1.2(b), Section 1.3(c) and/or Section 1.3(d)(i) of this Agreement;
(l) institute, solicit or join, as a party, or knowingly assist any other person in instituting, soliciting or joining, any litigation, arbitration or other proceeding against the Company or FSFR or any of their current or former directors or officers (including derivative actions), other than (i) litigation to enforce the provisions of this Agreement and (ii) counterclaims with respect to any proceeding initiated by, or on behalf of, a party to this Agreement or FSFR against Sellers;
(m) enter into or engage in any short sale or purchase, sale or grant of any option, warrant, derivative, convertible security, stock appreciation right or other similar right (including, without limitation, any put or call option or swap transaction) with respect to or having any measurement relating to any securities of the Companies;
(nh) enter into any discussions, negotiations, arrangements, understanding agreements or agreements (whether written or oral) withunderstandings with any Third Party with respect to the foregoing, or advise, finance, assist, encourage or seek to knowingly persuade or encourage, any Third Party to take any action or make any statement in connection with any of the foregoing, or make any investment in or enter into any arrangement with any other person that engages, or offers or proposes respect to engage, in any of the foregoing, or otherwise take or cause any action or make any statement inconsistent with any of the foregoing; or
(oi) take any action challenging the validity or enforceability of this Section 5 or this Agreement, or publicly make or in any way advance publicly any request or proposal that the Company, FSFR, the Company Board or the FSFR Board amend, modify or waive any provision of this Agreement.
Appears in 2 contracts
Samples: Settlement Agreement (Tofias Michael D), Settlement Agreement (Surge Components Inc)
Standstill. Effective from Except as otherwise contemplated by this agreement, ---------- or unless the date New Shareholder is invited to do otherwise by the Company's board of this Agreement and continuing until directors, during the later of the certification of votes for the Company 2017 Annual Meeting of Stockholders or the certification of votes for the FSFR (as defined below) 2017 Annual Meeting of Stockholders (the “Standstill Period”, the New Shareholder shall not, and shall not permit any of its affiliates (within the meaning of Rule 12b-2 under the Exchange Act) (including, without limitation, Xxxxx XX and Xxxxx'x Controlled Subsidiaries), except to or anyone acting on behalf of, or in concert with, the extent expressly permitted by the terms New Shareholder or any of this Agreementits affiliates, none of the Sellers shall, and Sellers shall cause their respective controlled Affiliates not to, directly or indirectly:
5.1 acquire, announce an intention to acquire, offer or propose to acquire, solicit an offer to sell or agree to acquire, by purchase, by gift, by joining a partnership, a limited partnership, a syndicate or any group (within the meaning of section 13(d)(3) of the Exchange Act) or otherwise, any (a) assets, businesses or properties of the Company or any of its subsidiaries, other than in the ordinary course of business, or (b) Equity Securities;
5.2 participate in the formation or encourage the formation of, or join or in any mannerway participate with, any partnership, limited partnership, syndicate, group or other person or entity that owns or seeks to acquire beneficial ownership of Equity Securities;
5.3 solicit, or participate in any solicitation of, proxies or become a participant in any election contest (the terms used in this section 5.3 having the respective meanings given them in Regulation 14A under the Exchange Act) with respect to the Company;
5.4 initiate, propose or otherwise solicit shareholders for the approval of one or more shareholder proposals with respect to the Company or induce any other person to initiate any shareholder proposal;
5.5 seek to place designees on the board of directors of the Company, seek the removal of any member of the board of directors of the Company or seek to have called any meeting of the shareholders of the Company;
5.6 deposit any Equity Securities in a voting trust or subject any Equity Securities to a voting agreement or other agreement or arrangement with respect to voting;
5.7 otherwise act, alone or in concert with others:
(a) , to seek to control the management, board of directors, policies or affairs of the Company or solicit, propose, seek to effect or knowingly encourage negotiate with any other person or in any way engage in any solicitation of, any proxies or consents or become a “participant” in a “solicitation,” directly or indirectly, as such terms are defined in Regulation 14A under the Securities Exchange Act of 1934, as amended (the “Exchange Act”) of proxies or consents entity (including, without limitation, any solicitation of consents that seeks to call a special meeting of stockholders or by encouraging or participating in any “withhold” or similar campaign), in each case, with respect to securities of the Company or Fifth Street Senior Floating Rate Corp. (“FSFR”Company) or any securities convertible or exchangeable into or exercisable for any such securities (collectively, “securities of the Companies”);
(b) make any proposal for consideration by stockholders at any annual or special meeting of the stockholders of the Company or FSFR, whether pursuant to Rule 14a-8 under the Exchange Act, either such company’s constituent documents or otherwise;
(c) knowingly advise, encourage, support, instruct or influence any person with respect to any form of the matters covered by this Section 3.1 business combination or other extraordinary transaction with respect to the voting or disposition of any securities of the Companies at any annual or special meeting of stockholders of the Company or FSFRany of its subsidiaries or any restructuring, except recapitalization, similar transaction or other transaction not in accordance with Section 3.4, or seek to do so;
(d) agree, attempt, seek or propose to deposit any securities the ordinary course of the Companies in any voting trust or similar arrangement, or subject any securities of the Companies to any arrangement or agreement with respect to the voting thereof, except in accordance with Section 3.4;
(e) knowingly seek or encourage any person to submit nominations in furtherance of a “contested solicitation” or take other action for the election or removal of directors business with respect to the Company or FSFRany of its subsidiaries, including solicit, make or propose or negotiate with any action that is intended other person or entity with respect to, or is reasonably likely announce an intent to result inmake, the replacement of the investment advisor of the Company any tender offer or FSFRexchange offer for any Equity Securities, or a modification to the terms or conditions of either the Company’s or FSFR’s investment advisory agreement;
(f) form, join in or in any way participate in a partnership, limited partnership, syndicate or other group, including, without limitation, a group as defined under Section 13(d) of the Exchange Act (except such participation related to the reasonable unwinding of any such group currently existing as of the date of this Agreement) with any person who is not identified on Schedule I hereto (any such person, a “Third Party”), with respect to any securities of the Companies or take any other action that would interfere with the ability of Sellers to vote in accordance with this Agreement;
(g) make any disclosure, communication, announcement or statement regarding any publicly disclose an intent, purpose, plan or proposal with respect to the FSC Board of Directors (the “Company Board”), the Company investment advisor or the terms and conditions of the Company’s investment advisory agreement, the FSFR Board of Directors (the “FSFR Board”), the FSFR investment advisor or the terms and conditions of FSFR’s investment advisory agreement, the Company, FSFR, any of its subsidiaries or the management, policies any securities or affairs assets of either the Company or FSFR, or with respect to this Agreementany of its subsidiaries, that is inconsistent with would violate the provisions of this Agreement;
(h) effect section 5, or assist, participate in, facilitate or solicit any effort or attempt by any person or entity to do or seek to effect, offer or propose to effect, cause or participate in, or in any way assist or facilitate any other person to effect or seek, offer or propose to effect or participate in, any tender or exchange offer, merger, consolidation, acquisition, scheme, arrangement, business combination, recapitalization, reorganization, sale or acquisition of assets, liquidation, dissolution, extraordinary dividend, significant share repurchase or other extraordinary transaction involving the Company, FSFR or either of their investment advisors, or any of their subsidiaries or joint ventures or any of their respective securities (each, an “Extraordinary Transaction”), or make any statement or disclosure regarding any intent, purpose, plan or proposal with respect to any Extraordinary Transaction or this Agreement that is inconsistent with the provisions of this Agreement, including any intent, purpose, plan or proposal that is conditioned on, or would require waiver, amendment, nullification or invalidation of, any provision of this Agreement or take any action that could require the Company or FSFR to make any public disclosure relating to any such intent, purpose, plan, proposal or condition;
(i) (i) call or seek to call or request the calling of any meeting of stockholders at either the Company or FSFR, including by written consent, (ii) seek, alone or in concert with others, representation on, or nominate any candidate to, the Company Board or the FSFR Board, (iii) seek the removal of any member of the Company Board or the FSFR Board, (iv) seek, alone or in concert with others, or support any Third Party in seeking, to replace the investment advisor of the Company or the investment advisor of FSFR, (v) solicit consents from the Company or FSFR stockholders or otherwise act or seek to act by written consent, (vi) conduct a referendum of the Company or FSFR stockholders or (vii) make a request for any stockholders list or any other books and records in Sellers’ capacity as a Company or FSFR stockholder;
(j) purchase or cause to be purchased or otherwise acquire or agree to acquire beneficial ownership of any securities issued by the Company or FSFR, or any securities convertible into or exchangeable for securities issued by the Company or FSFR;
(k) sell, offer to sell, give, pledge, grant a security interest in, encumber, assign, grant any option for the sale of or otherwise transfer or dispose of (each, a “Transfer”) any securities issued by the Company and/or any securities convertible into or exchangeable for securities issued by the Company, unless any Buyer fails to timely perform each of its obligations under Section 1.2(b), Section 1.3(c) and/or Section 1.3(d)(i) of this Agreement;
(l) institute, solicit or join, as a party, or knowingly assist any other person in instituting, soliciting or joining, any litigation, arbitration or other proceeding against the Company or FSFR or any of their current or former directors or officers (including derivative actions), other than (i) litigation to enforce the provisions of this Agreement and (ii) counterclaims with respect to any proceeding initiated by, or on behalf of, a party to this Agreement or FSFR against Sellers;
(m) enter into or engage in any short sale or purchase, sale or grant of any option, warrant, derivative, convertible security, stock appreciation right or other similar right (including, without limitation, any put or call option or swap transaction) with respect to or having any measurement relating to any securities of the Companies;
(n) enter into any negotiations, arrangements, understanding or agreements (whether written or oral) with, or advise, finance, assist, seek to knowingly persuade or encourage, any Third Party to take any action or make any statement in connection with any of the foregoing, or make any investment in or enter into any arrangement with any other person that engages, or offers or proposes to engage, in any of the foregoing, or otherwise take or cause any action or make any statement inconsistent with do any of the foregoing; or
(o) take any action challenging the validity or enforceability of this Agreement, or make or in any way advance any 5.8 request or proposal that the Company, FSFR, the Company Board (or the FSFR Board amendits directors, modify officers, employees or agents) to amend or waive any provision of this Agreement.section 5 (including, without limitation, this section 5.8) or otherwise seek any modification to or waiver of any of the agreements or obligations of the New Shareholder or its affiliates (including, without limitation, Xxxxx XX and Bayer's Controlled Subsidiaries) under this section 5. Notwithstanding any of the foregoing sections 5.1 through 5.8 and during the Standstill Period:
Appears in 2 contracts
Samples: Shareholder Agreements (Schein Pharmaceutical Inc), Shareholder Agreements (Schein Pharmaceutical Inc)
Standstill. Effective from During the date Standstill Period, the Raging Capital Group, each Member, each Raging Capital Nominee and each of this Agreement and continuing until their respective Affiliates shall not, without the later prior written consent of the certification Company:
(a) own, acquire, announce an intention to acquire, offer or propose to acquire, or agree to acquire, directly or indirectly, by purchase or otherwise, (i) Beneficial Ownership of votes any Common Stock representing in the aggregate in excess of 22.5% of the shares of Common Stock outstanding at any given time; provided that shares of Common Stock underlying Convertible Notes shall not be deemed to be Beneficially Owned, regardless of the ability of the holders thereof to convert such Convertible Notes into Common Stock at any given time, for purposes of calculating this ownership limitation unless and until such Convertible Notes are actually converted into Common Stock pursuant to the Company 2017 Annual Meeting terms thereof, or (ii) Beneficial Ownership of Stockholders any Senior Notes, Convertible Notes or any other interests in the certification Company’s indebtedness such that the aggregate principal amount of votes for the FSFR (as defined below) 2017 Annual Meeting of Stockholders (the “Standstill Period”), except all such indebtedness exceeds $40,000,000; provided that nothing herein will require Common Stock to be sold to the extent expressly permitted by the terms ownership limit in subparagraph (i) is exceeded solely as the result of this Agreementa share repurchase or similar Company action that reduces the number of outstanding shares of Common Stock;
(b) make, none of the Sellers shall, and Sellers shall cause their respective controlled Affiliates not toor in any way participate, directly or indirectly, in any manner, alone or in concert with others:
(a) solicit, or knowingly encourage or in any way engage in any solicitation of, any proxies or consents or become a “participant” in a “solicitation,” directly or indirectly, of “proxies” to vote (as such terms are defined used in Regulation 14A under the Securities Exchange Act rules of 1934, as amended (the “Exchange Act”) of proxies or consents (including, without limitation, any solicitation of consents that seeks to call a special meeting of stockholders or by encouraging or participating in any “withhold” or similar campaignSEC), in each case, with respect or seek to securities of the Company or Fifth Street Senior Floating Rate Corp. (“FSFR”) or any securities convertible or exchangeable into or exercisable for any such securities (collectively, “securities of the Companies”);
(b) make any proposal for consideration by stockholders at any annual or special meeting of the stockholders of the Company or FSFR, whether pursuant to Rule 14a-8 under the Exchange Act, either such company’s constituent documents or otherwise;
(c) knowingly advise, encourage, support, instruct advise or influence any person with respect to the voting of, any Voting Stock of the Company (other than in a Raging Capital Nominee’s capacity as a member of the Board in a manner consistent with the Board’s recommendation in connection with such matter);
(c) separately or in conjunction with any other person in which it is or proposes to be either a principal, partner or financing source or is acting or proposes to act as broker or agent, submit a recommendation of, proposal for or offer of (with or without conditions) (including to the Board) any Extraordinary Transaction, except confidentially in a manner that would not be reasonably likely to require public disclosure. “Extraordinary Transaction” means any of the matters covered by this Section 3.1 following involving the Company or with respect to the voting any of its Subsidiaries or disposition of any its or their securities or a material amount of the Companies at any annual assets or special meeting of stockholders businesses of the Company or FSFR, except in accordance with Section 3.4, or seek to do so;
(d) agree, attempt, seek or propose to deposit any securities of the Companies in any voting trust or similar arrangement, or subject any securities of the Companies to any arrangement or agreement with respect to the voting thereof, except in accordance with Section 3.4;
(e) knowingly seek or encourage any person to submit nominations in furtherance of a “contested solicitation” or take other action for the election or removal of directors with respect to the Company or FSFR, including any action that is intended to, or is reasonably likely to result in, the replacement of the investment advisor of the Company or FSFR, or a modification to the terms or conditions of either the Company’s or FSFR’s investment advisory agreement;
(f) form, join in or in any way participate in a partnership, limited partnership, syndicate or other group, including, without limitation, a group as defined under Section 13(d) of the Exchange Act (except such participation related to the reasonable unwinding of any such group currently existing as of the date of this Agreement) with any person who is not identified on Schedule I hereto (any such person, a “Third Party”), with respect to any securities of the Companies or take any other action that would interfere with the ability of Sellers to vote in accordance with this Agreement;
(g) make any disclosure, communication, announcement or statement regarding any intent, purpose, plan or proposal with respect to the FSC Board of Directors (the “Company Board”), the Company investment advisor or the terms and conditions of the Company’s investment advisory agreement, the FSFR Board of Directors (the “FSFR Board”), the FSFR investment advisor or the terms and conditions of FSFR’s investment advisory agreement, the Company, FSFR, or the management, policies or affairs of either the Company or FSFR, or with respect to this Agreement, that is inconsistent with the provisions of this Agreement;
(h) effect or seek to effect, offer or propose to effect, cause or participate in, or in any way assist or facilitate any other person to effect or seek, offer or propose to effect or participate in, its Subsidiaries: any tender offer or exchange offer, merger, consolidation, acquisition, scheme, arrangement, business combination, reorganization, restructuring, recapitalization, reorganization, sale or acquisition of material assets, liquidation, liquidation or dissolution, extraordinary dividend, significant share repurchase or other extraordinary transaction involving the Company, FSFR or either of their investment advisors, or any of their subsidiaries or joint ventures or any of their respective securities (each, an “Extraordinary Transaction”), or make any statement or disclosure regarding any intent, purpose, plan or proposal with respect to any Extraordinary Transaction or this Agreement that is inconsistent with the provisions of this Agreement, including any intent, purpose, plan or proposal that is conditioned on, or would require waiver, amendment, nullification or invalidation of, any provision of this Agreement or take any action that could require the Company or FSFR to make any public disclosure relating to any such intent, purpose, plan, proposal or condition;
(i) (i) call or seek to call or request the calling of any meeting of stockholders at either the Company or FSFR, including by written consent, (ii) seek, alone or in concert with others, representation on, or nominate any candidate to, the Company Board or the FSFR Board, (iii) seek the removal of any member of the Company Board or the FSFR Board, (iv) seek, alone or in concert with others, or support any Third Party in seeking, to replace the investment advisor of the Company or the investment advisor of FSFR, (v) solicit consents from the Company or FSFR stockholders or otherwise act or seek to act by written consent, (vi) conduct a referendum of the Company or FSFR stockholders or (vii) make a request for any stockholders list or any other books and records in Sellers’ capacity as a Company or FSFR stockholder;
(j) purchase or cause to be purchased or otherwise acquire or agree to acquire beneficial ownership of any securities issued by the Company or FSFR, or any securities convertible into or exchangeable for securities issued by the Company or FSFR;
(k) sell, offer to sell, give, pledge, grant a security interest in, encumber, assign, grant any option for the sale of or otherwise transfer or dispose of (each, a “Transfer”) any securities issued by the Company and/or any securities convertible into or exchangeable for securities issued by the Company, unless any Buyer fails to timely perform each of its obligations under Section 1.2(b), Section 1.3(c) and/or Section 1.3(d)(i) of this Agreement;
(l) institute, solicit or join, as a party, or knowingly assist any other person in instituting, soliciting or joining, any litigation, arbitration or other proceeding against the Company or FSFR or any of their current or former directors or officers (including derivative actions), other than (i) litigation to enforce the provisions of this Agreement and (ii) counterclaims with respect to any proceeding initiated by, or on behalf of, a party to this Agreement or FSFR against Sellers;
(m) enter into or engage in any short sale or purchase, sale or grant of any option, warrant, derivative, convertible security, stock appreciation right or other similar right (including, without limitation, any put or call option or swap transaction) with respect to or having any measurement relating to any securities of the Companies;
(n) enter into any negotiations, arrangements, understanding or agreements (whether written or oral) with, or advise, finance, assist, seek to knowingly persuade or encourage, any Third Party to take any action or make any statement in connection with any of the foregoing, or make any investment in or enter into any arrangement with any other person that engages, or offers or proposes to engage, in any of the foregoing, or otherwise take or cause any action or make any statement inconsistent with any of the foregoing; or
(o) take any action challenging the validity or enforceability of this Agreement, or make or in any way advance any request or proposal that the Company, FSFR, the Company Board or the FSFR Board amend, modify or waive any provision of this Agreement.
Appears in 2 contracts
Samples: Settlement Agreement (Castle a M & Co), Settlement Agreement (Raging Capital Management, LLC)
Standstill. Effective (a) Subject to Section 5.7, from the date of this Agreement and continuing until the later second (2nd) anniversary of the certification of votes for the Company 2017 Annual Meeting of Stockholders or the certification of votes for the FSFR (as defined below) 2017 Annual Meeting of Stockholders Closing Date (the “Standstill Period”), except to the extent expressly permitted by Trustee shall ensure that each Trust and the terms of this Agreement, none Representatives of the Sellers shallTrustee who are directors, officers or employees of the Trustee do not, and Sellers shall will use its reasonable best efforts to cause their respective controlled Affiliates not toits other Representatives that are acting on its behalf in connection the Reclassification, alternatives thereto, the Company or the interests of the Trusts therein to not, directly or indirectly, in any manner, alone except with the prior written invitation or in concert with othersconsent of the Board:
(ai) solicitother than the Existing Shares, acquire or knowingly encourage beneficially own any shares of Class A Stock, Class B Stock or other equity securities of the Company (including, from and after the Closing, any shares of Common Stock) or any options, warrants, swaps, forward contracts or other derivative instruments with respect thereto (each, “Company Securities”); provided, that the Trustee, on behalf of the Trusts, shall not be prohibited from entering into customary “short position” derivative transactions with respect to Company Securities for the purpose of hedging the economic exposure to the Trusts of owning the Existing Shares, as long as the Trustee, on behalf of the Trusts, retains the ability at all times to vote the Company Securities subject to any such arrangements;
(ii) make, or in any way engage in any solicitation ofparticipate in, any proxies or consents or become a “participant” in a “solicitation,” directly or indirectly, any “solicitation” (as such terms are term is defined in Regulation 14A under the Securities Exchange Act of 1934, as amended (the “Exchange Act”) of proxies or consents (including, without limitation, any solicitation of consents that seeks to call a special meeting of stockholders or by encouraging or participating in any “withhold” or similar campaign), in each case, with respect to securities of the Company or Fifth Street Senior Floating Rate Corp. (“FSFR”) or any securities convertible or exchangeable into or exercisable for any such securities (collectively, “securities of the Companies”);
(b) make any proposal for consideration by stockholders at any annual or special meeting of the stockholders of the Company or FSFR, whether pursuant to Rule 14a-8 14a-1 under the Exchange Act, either such company’s constituent documents including any otherwise exempt solicitation pursuant to Rule 14a-2(b) under the Exchange Act) to vote or otherwiserefrain from voting any Company Securities;
(c) knowingly advise, encourage, support, instruct or influence any person with respect to any of the matters covered by this Section 3.1 or with respect to the voting or disposition of any securities of the Companies at any annual or special meeting of stockholders of the Company or FSFR, except in accordance with Section 3.4, or seek to do so;
(d) agree, attempt, seek or propose to deposit any securities of the Companies in any voting trust or similar arrangement, or subject any securities of the Companies to any arrangement or agreement with respect to the voting thereof, except in accordance with Section 3.4;
(e) knowingly seek or encourage any person to submit nominations in furtherance of a “contested solicitation” or take other action for the election or removal of directors with respect to the Company or FSFR, including any action that is intended to, or is reasonably likely to result in, the replacement of the investment advisor of the Company or FSFR, or a modification to the terms or conditions of either the Company’s or FSFR’s investment advisory agreement;
(f) form, join in or in any way participate in a partnership, limited partnership, syndicate or other group, including, without limitation, a group as defined under Section 13(d) of the Exchange Act (except such participation related to the reasonable unwinding of any such group currently existing as of the date of this Agreement) with any person who is not identified on Schedule I hereto (any such person, a “Third Party”), with respect to any securities of the Companies or take any other action that would interfere with the ability of Sellers to vote in accordance with this Agreement;
(giii) make any disclosure, communication, announcement director nomination or statement regarding any intent, purpose, plan or shareholder proposal with respect to the FSC Board of Directors (the “Company Board”), the Company investment advisor or the terms and conditions of the Company’s investment advisory agreement, the FSFR Board of Directors (the “FSFR Board”), the FSFR investment advisor or the terms and conditions of FSFR’s investment advisory agreement, the Company, FSFR, or the management, policies or affairs of either the Company or FSFR, or with respect to this Agreement, that is inconsistent with the provisions of this Agreement;
(hiv) effect act, whether alone or with others, to propose or seek to effectpropose any merger, offer or propose to effectshare exchange, cause or participate inbusiness combination, or in any way assist or facilitate any other person to effect or seek, offer or propose to effect or participate in, any tender or exchange offer, restructuring, recapitalization, liquidation or similar transaction of or involving, or any sale or other disposition or acquisition of any part of the consolidated assets of, the Company;
(v) solicit, initiate, knowingly encourage or knowingly facilitate, or negotiate with any person(s) with respect to any merger, consolidation, acquisition, scheme, arrangementshare exchange, business combination, tender or exchange offer, restructuring, recapitalization, reorganizationliquidation or similar transaction of or involving, or any sale or other disposition or acquisition of assetsany part of the consolidated assets of, liquidation, dissolution, extraordinary dividend, significant share repurchase or other extraordinary transaction involving the Company, FSFR or either of their investment advisors, or any of their subsidiaries or joint ventures or any of their respective securities (each, an “Extraordinary Transaction”), or make any statement or disclosure regarding any intent, purpose, plan or proposal with respect to any Extraordinary Transaction or this Agreement that is inconsistent with the provisions of this Agreement, including any intent, purpose, plan or proposal that is conditioned on, or would require waiver, amendment, nullification or invalidation of, any provision of this Agreement or take any action that could require the Company or FSFR to make any public disclosure relating to any such intent, purpose, plan, proposal or condition;
(i) (i) call or seek to call or request the calling of any meeting of stockholders at either the Company or FSFR, including by written consent, (ii) seek, alone or in concert with others, representation on, or nominate any candidate to, the Company Board or the FSFR Board, (iii) seek the removal of any member of the Company Board or the FSFR Board, (iv) seek, alone or in concert with others, or support any Third Party in seeking, to replace the investment advisor of the Company or the investment advisor of FSFR, (v) solicit consents from the Company or FSFR stockholders or otherwise act or seek to act by written consent, (vi) conduct deposit any Company Securities in a referendum of the voting trust or similar arrangement or enter into or subject any Company Securities to any voting agreement or FSFR stockholders or similar arrangement;
(vii) make act as a request for financing source for, or facilitate any stockholders list or financing by, any other books and records in Sellers’ capacity as a Company or FSFR stockholder;
(jperson(s) purchase or cause to be purchased or otherwise acquire or agree to acquire beneficial ownership of any securities issued by the Company or FSFR, or any securities convertible into or exchangeable for securities issued by the Company or FSFR;
(k) sell, offer to sell, give, pledge, grant a security interest in, encumber, assign, grant any option for the sale of or otherwise transfer or dispose of (each, a “Transfer”) any securities issued by the Company and/or any securities convertible into or exchangeable for securities issued by the Company, unless any Buyer fails to timely perform each of its obligations under Section 1.2(b), Section 1.3(c) and/or Section 1.3(d)(i) of this Agreement;
(l) institute, solicit or join, as a party, or knowingly assist any other person in instituting, soliciting or joining, any litigation, arbitration or other proceeding against the Company or FSFR or any of their current or former directors or officers (including derivative actions), other than (i) litigation to enforce the provisions of this Agreement and (ii) counterclaims with respect to any proceeding initiated by, or on behalf of, a party to this Agreement or FSFR against Sellers;
(m) enter into or engage in any short sale or purchase, sale or grant of any option, warrant, derivative, convertible security, stock appreciation right or other similar right (including, without limitation, any put or call option or swap transaction) with respect to or having any measurement relating to any securities of the Companies;
(n) enter into any negotiations, arrangements, understanding or agreements (whether written or oral) with, or advise, finance, assist, seek to knowingly persuade or encourage, any Third Party to take any action or make any statement in connection with any of the foregoing;
(viii) take any action in pursuit of any of the types of matters set forth in this Section 5.6 which would, or would reasonably be expected to, require the Company to make a public announcement regarding any investment of the types of matters set forth in this Section 5.6 or in response thereto;
(ix) disclose any intention, plan or arrangement, or enter into any arrangement negotiations, arrangements or understandings with any other person that engagesperson(s), or offers or proposes to engage, in any of the foregoing, or otherwise take or cause any action or make any statement which are inconsistent with any of the foregoing;
(x) form or join a group (within the meaning of Section 13(d)(3) of the Exchange Act) with any person(s) in connection with the taking of any action set forth in this Section 5.6, or act together with or knowingly encourage any person or group in taking any such actions; or
(oxi) take any action challenging the validity or enforceability of this Agreement, or make or in any way advance any request or proposal that the Company, FSFR, to the Company Board or the FSFR Board amendits Representatives, modify directly or indirectly, to amend or waive any provision of this AgreementSection 5.6. For the avoidance of doubt, subject to Section 5.4, this Section 5.6(a) shall not limit the ability of the Trustee or the Trusts to vote for or against, grant proxies, written consents or ballots in relation to, tender into or abstain from taking any action in connection with transactions, proposals or other matters initiated and coordinated by other persons unaffiliated with the Trustee and the Trusts and acting independently of, and not in conjunction with or at the behest or instigation of, the Trustee and the Trusts.
(b) The Trustee, on behalf of each Trust, hereby irrevocably and unconditionally agrees, during the Standstill Period, at each annual or special meeting of the Shareholders, however called, including any adjournment or postponement thereof, and in connection with any action proposed to be taken by written consent of the Shareholders, that the Trustee, on behalf of each Trust, shall, in each case to the fullest extent that the Covered Shares are entitled to vote thereon or consent thereto, appear, in person or by proxy, at each such meeting or otherwise cause the Covered Shares to be counted as present thereat for purposes of determining a quorum.
Appears in 2 contracts
Samples: Reclassification Agreement (BESSEMER TRUST Co NATIONAL ASSOCIATION), Reclassification Agreement (Hubbell Inc)
Standstill. Effective (a) Each IVP Equityholder, each Xxxxxxx Equityholder, each BluJay Equityholder, the Founder Holders and the Sponsor (each a, “Standstill Party”), severally and not jointly, agree with PubCo that, from the Effective Date until, and including, the date of this Agreement and continuing until that is the later of (i) February 4, 2022 and (ii) the certification date on which PubCo’s 2022 annual meeting of votes for the Company 2017 Annual Meeting of Stockholders stockholders at which directors are elected occurs (or the certification of votes for the FSFR any postponement or adjournment thereof) (as defined below) 2017 Annual Meeting of Stockholders (such period, the “Standstill Period”), except to the extent expressly permitted by the terms of this Agreement, none of the Sellers shall, and Sellers such Standstill Party shall cause their respective controlled Affiliates not tonot, directly or indirectly, in any manner, alone or in concert with others:
(ai) solicitmake, or knowingly encourage engage in, or in any way engage way, participate in any solicitation of, any proxies or consents or become a “participant” in a “solicitation,” directly or indirectly, of “proxies” (as such terms are defined used in Regulation 14A under the Securities Exchange Act 14 of 1934, as amended (the “Exchange Act”) of proxies or consents (including, without limitation, any solicitation of consents that seeks to call a special meeting of stockholders or by encouraging or participating in any “withhold” or similar campaign), in each case, with respect to securities of the Company or Fifth Street Senior Floating Rate Corp. (“FSFR”) or any securities convertible or exchangeable into or exercisable for any such securities (collectively, “securities of the Companies”);
(b) make any proposal for consideration by stockholders at any annual or special meeting of the stockholders of the Company or FSFR, whether pursuant to Rule 14a-8 under the Exchange Act) to vote, either such company’s constituent documents or otherwise;
(c) knowingly advise, encourage, support, instruct seek to advise or influence any person with respect to any of the matters covered by this Section 3.1 or Person with respect to the voting of, any Equity Securities of PubCo or disposition any of its Subsidiaries in favor of the election of any securities person as a director who is not nominated pursuant to this Agreement or by the Board (or its nominating committee) or in opposition of any individual nominated or designated for appointment or election to the Companies at Board by PubCo pursuant to this Agreement (including any annual “withhold,” “vote no” or special meeting similar campaign even if conducted as an exempt solicitation) or otherwise in opposition of stockholders any IVP Director, Sponsor Director, FP Director or Temasek Director (including by “solicitation” of “proxies” in favor of any opposing nominee of any such individual);
(ii) nominate any person as a director who is not nominated pursuant to this Agreement or by the Company Board (or FSFR, except its nominating committee) (other than by making a non-public proposal or request to the Board or its nominating committee in a manner which would not require the Board or PubCo to make any public disclosure);
(iii) take any action in support of or make any proposal or request that constitutes: (i) a change in the number or term of directors or to fill any vacancies on the Board (other than in accordance with Section 3.4this Agreement) or (ii) a change to the composition of the Board, other than by making a non-public proposal or seek request to do sothe Board (or its nominating committee) in a manner which would not require the Board or PubCo to make any public disclosure;
(div) agreeenter into a voting trust, attempt, seek or propose to deposit any securities of the Companies in any voting trust agreement or similar arrangementvoting arrangement with respect to any Equity Securities of PubCo, or subject any securities Equity Securities of PubCo to any voting trust, voting agreement or similar voting arrangement (excluding customary brokerage accounts, margin accounts, prime brokerage accounts and similar other accounts), in each case other than (A) this Agreement, (B) solely with Affiliates or Permitted Transferees of the Companies to any arrangement Standstill Party or agreement with respect to (C) granting proxies in solicitations approved by the voting thereof, except in accordance with Section 3.4Board;
(e) knowingly seek or encourage any person to submit nominations in furtherance of a “contested solicitation” or take other action for the election or removal of directors with respect to the Company or FSFR, including any action that is intended to, or is reasonably likely to result in, the replacement of the investment advisor of the Company or FSFR, or a modification to the terms or conditions of either the Company’s or FSFR’s investment advisory agreement;
(fv) form, join in or in any way participate in a partnership, limited partnership, syndicate or other “group, including, without limitation, a group ” (as defined under in Section 13(d13(d)(3) of the Exchange Act (except such participation related to the reasonable unwinding of Act), or knowingly advise, assist or encourage, or enter into any such group currently existing as of the date of this Agreement) agreement with, any other Person, in connection with any person who is not identified on Schedule I hereto action contemplated by this Section 3.3(a); or
(vi) make any such person, a “Third Party”public disclosure inconsistent with this Section 3.3(a), or take any action that would reasonably be expected to require PubCo to make any public disclosure with respect to the matters set forth in this Section 3.3(a).
(b) Notwithstanding the foregoing provisions of this Section 3.3, the foregoing provisions of Section 3.3(a) shall not, and are not intended to:
(i) prohibit any securities Party or its Affiliates from privately communicating with, including making any offer or proposal to, the Board (in a manner which would not require the Board or PubCo to make any public disclosure);
(ii) restrict in any manner how a Party or its Affiliates vote their Common Stock or other Common Stock, except as provided in Section 3.2 or otherwise as set forth in this Agreement;
(iii) restrict the manner in which any IVP Director, Sponsor Director, FP Director or Temasek Director may (A) vote on any matter submitted to the Board or the stockholders of PubCo, (B) participate in deliberations or discussions of the Companies Board (including making suggestions or raising issues to the Board) in his or her capacity as a member of the Board, or (C) take actions required by his or her exercise of legal duties and obligations as a member of the Board or refrain from taking any other action that would interfere with prohibited by his or her legal duties and obligations as a member of the ability Board, provided the foregoing shall not limit an Equityholder’s, the Sponsor’s or the Founder Holders’ obligations hereunder; or
(iv) restrict the Sponsor, any Founder Holder or any Equityholder or any of Sellers to vote their respective Permitted Transferees from selling or transferring any of their Common Stock in accordance with this Agreement;
(g) make any disclosure, communication, announcement or statement regarding any intent, purpose, plan or proposal with respect to the FSC Board of Directors (the “Company Board”), the Company investment advisor or the terms and conditions of the Company’s investment advisory agreement, the FSFR Board of Directors (the “FSFR Board”), the FSFR investment advisor or the terms and conditions of FSFR’s investment advisory agreement, the Company, FSFR, or the management, policies or affairs of either the Company or FSFR, or with respect to this Agreement, that is inconsistent with the provisions of this Agreement;
(h) effect or seek to effect, offer or propose to effect, cause or participate in, or in any way assist or facilitate any other person to effect or seek, offer or propose to effect or participate in, any tender or exchange offer, merger, consolidation, acquisition, scheme, arrangement, business combination, recapitalization, reorganization, sale or acquisition of assets, liquidation, dissolution, extraordinary dividend, significant share repurchase or other extraordinary transaction involving the Company, FSFR or either of their investment advisors, or any of their subsidiaries or joint ventures or any of their respective securities (each, an “Extraordinary Transaction”), or make any statement or disclosure regarding any intent, purpose, plan or proposal with respect to any Extraordinary Transaction or this Agreement that is inconsistent with the provisions of this Agreement, including any intent, purpose, plan or proposal that is conditioned on, or would require waiver, amendment, nullification or invalidation of, any provision of this Agreement or take any action that could require the Company or FSFR to make any public disclosure relating to any such intent, purpose, plan, proposal or condition;
(i) (i) call or seek to call or request the calling of any meeting of stockholders at either the Company or FSFR, including by written consent, (ii) seek, alone or in concert with others, representation on, or nominate any candidate to, the Company Board or the FSFR Board, (iii) seek the removal of any member of the Company Board or the FSFR Board, (iv) seek, alone or in concert with others, or support any Third Party in seeking, to replace the investment advisor of the Company or the investment advisor of FSFR, (v) solicit consents from the Company or FSFR stockholders or otherwise act or seek to act by written consent, (vi) conduct a referendum of the Company or FSFR stockholders or (vii) make a request for any stockholders list or any other books and records in Sellers’ capacity as a Company or FSFR stockholder;
(j) purchase or cause to be purchased or otherwise acquire or agree to acquire beneficial ownership of any securities issued by the Company or FSFR, or any securities convertible into or exchangeable for securities issued by the Company or FSFR;
(k) sell, offer to sell, give, pledge, grant a security interest in, encumber, assign, grant any option for the sale of or otherwise transfer or dispose of (each, a “Transfer”) any securities issued by the Company and/or any securities convertible into or exchangeable for securities issued by the Company, unless any Buyer fails to timely perform each of its obligations under Section 1.2(b), Section 1.3(c) and/or Section 1.3(d)(i) of this Agreement;
(l) institute, solicit or join, as a party, or knowingly assist any other person in instituting, soliciting or joining, any litigation, arbitration or other proceeding against the Company or FSFR or any of their current or former directors or officers (including derivative actions), other than (i) litigation to enforce the provisions of this Agreement and (ii) counterclaims with respect to any proceeding initiated by, or on behalf of, a party to this Agreement or FSFR against Sellers;
(m) enter into or engage in any short sale or purchase, sale or grant of any option, warrant, derivative, convertible security, stock appreciation right or other similar right (including, without limitation, any put or call option or swap transaction) with respect to or having any measurement relating to any securities of the Companies;
(n) enter into any negotiations, arrangements, understanding or agreements (whether written or oral) with, or advise, finance, assist, seek to knowingly persuade or encourage, any Third Party to take any action or make any statement in connection with any of the foregoing, or make any investment in or enter into any arrangement with any other person that engages, or offers or proposes to engage, in any of the foregoing, or otherwise take or cause any action or make any statement inconsistent with any of the foregoing; or
(o) take any action challenging the validity or enforceability of this Agreement, or make or in any way advance any request or proposal that the Company, FSFR, the Company Board or the FSFR Board amend, modify or waive any provision of this Agreement.
Appears in 2 contracts
Samples: Investor Rights Agreement (Temasek Holdings (Private) LTD), Investor Rights Agreement (E2open Parent Holdings, Inc.)
Standstill. Effective from From the date of this Agreement and continuing until the later of the certification of votes for the Company 2017 Annual Meeting of Stockholders or the certification of votes for the FSFR (as defined below) 2017 Annual Meeting of Stockholders (the “Standstill Period”)Termination Date, except pursuant to the extent expressly permitted a negotiated transaction approved by the terms of this AgreementBoard, none of the Sellers shall, Stockholder and Sellers shall cause their respective controlled its Affiliates not to, directly or indirectlywill not, in any manner, alone directly or in concert with othersindirectly:
(a) solicitmake, effect, initiate, cause or participate in (A) any acquisition of beneficial ownership of any securities of Commerce and its Related Entities, (B) any acquisition of any assets of Commerce and its Related Entities, (C) any tender offer, exchange offer, merger, business combination, recapitalization, restructuring, liquidation, dissolution or extraordinary transaction involving Commerce and its Related Entities, or knowingly encourage involving any securities or assets of Commerce and its Related Entities or (D) any "solicitation" of "proxies" (as those terms are used in any way engage in any solicitation of, any proxies the proxy rules of the Securities and Exchange Commission) or consents with respect to any securities of Commerce;
(b) form, join or become a “participant” participate in a “solicitation,” directly or indirectly, "group" (as such terms are defined in Regulation 14A under the Securities Exchange Act of 1934, as amended (amended, and the “Exchange Act”) of proxies or consents (including, without limitation, any solicitation of consents that seeks to call a special meeting of stockholders or by encouraging or participating in any “withhold” or similar campaignrules promulgated thereunder), in each casepooling agreement, syndicate or voting trust with respect to the beneficial ownership of any securities of the Company Commerce, or Fifth Street Senior Floating Rate Corp. (“FSFR”) or any securities convertible or exchangeable into or exercisable for any such securities (collectively, “otherwise act in concert with another stockholder of securities of Commerce for the Companies”);
(b) make any proposal for consideration by stockholders at any annual purpose of acquiring, holding, voting or special meeting disposing of the stockholders of the Company or FSFR, whether pursuant to Rule 14a-8 under the Exchange Act, either such company’s constituent documents or otherwiseCommerce's securities;
(c) knowingly advise, encourage, support, instruct or influence any person with respect to any of the matters covered by this Section 3.1 or with respect to the voting or disposition of any securities of the Companies at any annual or special meeting of stockholders of the Company or FSFR, except in accordance with Section 3.4, or seek to do so;
(d) agree, attempt, seek or propose to deposit any securities of the Companies in any voting trust or similar arrangement, or subject any securities of the Companies to any arrangement or agreement with respect to the voting thereof, except in accordance with Section 3.4;
(e) knowingly seek or encourage any person to submit nominations in furtherance of a “contested solicitation” or take other action for the election or removal of directors with respect to the Company or FSFR, including any action that is intended to, or is reasonably likely to result in, the replacement of the investment advisor of the Company or FSFR, or a modification to the terms or conditions of either the Company’s or FSFR’s investment advisory agreement;
(f) form, join in or in any way participate in a partnership, limited partnership, syndicate or other group, including, without limitation, a group as defined under Section 13(d) of the Exchange Act (except such participation related to the reasonable unwinding of any such group currently existing as of the date of this Agreement) with any person who is not identified on Schedule I hereto (any such person, a “Third Party”), with respect to any securities of the Companies or take any other action that would interfere with the ability of Sellers to vote in accordance with this Agreement;
(g) make any disclosure, communication, announcement or statement regarding any intent, purpose, plan or proposal with respect to the FSC Board of Directors (the “Company Board”), the Company investment advisor or the terms and conditions of the Company’s investment advisory agreement, the FSFR Board of Directors (the “FSFR Board”), the FSFR investment advisor or the terms and conditions of FSFR’s investment advisory agreement, the Company, FSFR, or the management, policies or affairs of either the Company or FSFR, or with respect to this Agreement, that is inconsistent with the provisions of this Agreement;
(h) effect or seek to effect, offer or propose to effect, cause or participate in, or in any way assist or facilitate any other person to effect or seek, offer or propose to effect or participate in, any tender or exchange offer, merger, consolidation, acquisition, scheme, arrangement, business combination, recapitalization, reorganization, sale or acquisition of assets, liquidation, dissolution, extraordinary dividend, significant share repurchase or other extraordinary transaction involving the Company, FSFR or either of their investment advisors, or any of their subsidiaries or joint ventures or any of their respective securities (each, an “Extraordinary Transaction”), or make any statement or disclosure regarding any intent, purpose, plan or proposal with respect to any Extraordinary Transaction or this Agreement that is inconsistent with the provisions of this Agreement, including any intent, purpose, plan or proposal that is conditioned on, or would require waiver, amendment, nullification or invalidation of, any provision of this Agreement or take any action that could require the Company or FSFR to make any public disclosure relating to any such intent, purpose, plan, proposal or condition;
(i) (i) call or seek to call or request the calling of any meeting of stockholders at either the Company or FSFR, including by written consent, (ii) seekact, alone or in concert with others, representation onto seek to control or influence the management, or nominate any candidate to, the Company Board or the FSFR Board, (iii) seek the removal policies of any member of the Company Board or the FSFR Board, (iv) seek, alone or in concert with others, or support any Third Party in seeking, to replace the investment advisor of the Company or the investment advisor of FSFR, (v) solicit consents from the Company or FSFR stockholders or otherwise act or seek to act by written consent, (vi) conduct a referendum of the Company or FSFR stockholders or (vii) make a request for any stockholders list or any other books and records in Sellers’ capacity as a Company or FSFR stockholderCommerce;
(j) purchase or cause to be purchased or otherwise acquire or agree to acquire beneficial ownership of any securities issued by the Company or FSFR, or any securities convertible into or exchangeable for securities issued by the Company or FSFR;
(k) sell, offer to sell, give, pledge, grant a security interest in, encumber, assign, grant any option for the sale of or otherwise transfer or dispose of (each, a “Transfer”) any securities issued by the Company and/or any securities convertible into or exchangeable for securities issued by the Company, unless any Buyer fails to timely perform each of its obligations under Section 1.2(b), Section 1.3(c) and/or Section 1.3(d)(i) of this Agreement;
(l) institute, solicit or join, as a party, or knowingly assist any other person in instituting, soliciting or joining, any litigation, arbitration or other proceeding against the Company or FSFR or any of their current or former directors or officers (including derivative actions), other than (i) litigation to enforce the provisions of this Agreement and (ii) counterclaims with respect to any proceeding initiated by, or on behalf of, a party to this Agreement or FSFR against Sellers;
(m) enter into or engage in any short sale or purchase, sale or grant of any option, warrant, derivative, convertible security, stock appreciation right or other similar right (including, without limitation, any put or call option or swap transaction) with respect to or having any measurement relating to any securities of the Companies;
(n) enter into any negotiations, arrangements, understanding or agreements (whether written or oral) with, or advise, finance, assist, seek to knowingly persuade or encourage, any Third Party to take any action or make any statement in connection with any of the foregoing, or make any investment in or enter into any arrangement with any other person that engages, or offers or proposes to engage, in any of the foregoing, or otherwise take or cause any action or make any statement inconsistent with any of the foregoing; or
(od) take any action challenging which might force Commerce to make a public announcement regarding any of the validity or enforceability types of matters set forth in clause "(a)" of this Agreement, or make or in any way advance any sentence;
(e) request or proposal propose that the CompanyCommerce (or its directors, FSFRofficers, the Company Board employees or the FSFR Board amendagents), modify directly or indirectly, amend or waive any provision of this Agreement.Section 3.2, including this subsection (e);
(f) agree or offer to take, or encourage or propose (publicly or otherwise) the taking of, any action referred to in clauses "(a)", "(b)", "
(d) or "
(e) of this sentence;
Appears in 2 contracts
Samples: Voting and Standstill Agreement (Commerce Energy Group Inc), Voting and Standstill Agreement (Commerce Energy Group Inc)
Standstill. Effective from In the date event that the common stock of this Agreement and continuing until the later MacroGenics becomes listed on a national securities exchange in an initial public offering (an “IPO”) ***, Gilead agrees that neither it nor any of the certification its Affiliates, acting alone or as part of votes any 13D Group, shall directly or indirectly, for the Company 2017 Annual Meeting a period of Stockholders or the certification of votes for the FSFR (as defined below) 2017 Annual Meeting of Stockholders *** (the “Standstill Period”), except without the prior written approval of MacroGenics’ Board of Directors:
14.1.1 acquire or agree, offer, seek or propose to acquire, or cause to be acquired, ownership (including, but not limited to, beneficial ownership as defined in Rule 13d-3 under the extent expressly permitted by the terms Securities and Exchange Act of this Agreement, none 1934) of any substantial part of the Sellers shallassets or businesses of MacroGenics or of any voting securities of MacroGenics, and Sellers shall cause their respective controlled Affiliates not toor any rights or options to acquire any such ownership (including from a third party);
14.1.2 make, or in any way participate, directly or indirectly, in any manner, alone or in concert with others:
(a) solicit, or knowingly encourage or in any way engage in any solicitation of, any proxies or consents or become a “participant” in a “solicitation,” directly or indirectly, of “proxies” (as such terms are defined used in Regulation 14A under the proxy rules of the Securities and Exchange Act of 1934Commission) to vote, as amended (the “Exchange Act”) of proxies or consents (including, without limitation, any solicitation of consents that seeks seek to call a special meeting of stockholders or by encouraging or participating in any “withhold” or similar campaign), in each case, with respect to securities of the Company or Fifth Street Senior Floating Rate Corp. (“FSFR”) or any securities convertible or exchangeable into or exercisable for any such securities (collectively, “securities of the Companies”);
(b) make any proposal for consideration by stockholders at any annual or special meeting of the stockholders of the Company or FSFR, whether pursuant to Rule 14a-8 under the Exchange Act, either such company’s constituent documents or otherwise;
(c) knowingly advise, encourage, support, instruct advise or influence any person with respect to any of the matters covered by this Section 3.1 or with respect to the voting or disposition of any voting securities of the Companies at any annual or special meeting of stockholders of the Company or FSFR, except in accordance with Section 3.4, or seek to do soMacroGenics;
(d) agree, attempt, seek or propose to deposit any securities of the Companies in any voting trust or similar arrangement, or subject any securities of the Companies to any arrangement or agreement with respect to the voting thereof, except in accordance with Section 3.4;
(e) knowingly seek or encourage any person to submit nominations in furtherance of a “contested solicitation” or take other action for the election or removal of directors with respect to the Company or FSFR, including any action that is intended to, or is reasonably likely to result in, the replacement of the investment advisor of the Company or FSFR, or a modification to the terms or conditions of either the Company’s or FSFR’s investment advisory agreement;
(f) 14.1.3 form, join in or in any way participate in a partnership, limited partnership, syndicate or other group, including, without limitationin, a group as defined under “group” (within the meaning of Section 13(d13(d)(3) of the Securities Exchange Act of 1934) (except such participation related to the reasonable unwinding of any such group currently existing as of the date of this Agreement“13D Group”) with any person who is not identified on Schedule I hereto (any such person, a “Third Party”), with respect to any voting securities of the Companies or take any other action that would interfere with the ability of Sellers to vote in accordance with this AgreementMacroGenics;
(g) make any disclosure14.1.4 otherwise act, communication, announcement or statement regarding any intent, purpose, plan or proposal with respect to the FSC Board of Directors (the “Company Board”), the Company investment advisor or the terms and conditions of the Company’s investment advisory agreement, the FSFR Board of Directors (the “FSFR Board”), the FSFR investment advisor or the terms and conditions of FSFR’s investment advisory agreement, the Company, FSFR, or the management, policies or affairs of either the Company or FSFR, or with respect to this Agreement, that is inconsistent with the provisions of this Agreement;
(h) effect or seek to effect, offer or propose to effect, cause or participate in, or in any way assist or facilitate any other person to effect or seek, offer or propose to effect or participate in, any tender or exchange offer, merger, consolidation, acquisition, scheme, arrangement, business combination, recapitalization, reorganization, sale or acquisition of assets, liquidation, dissolution, extraordinary dividend, significant share repurchase or other extraordinary transaction involving the Company, FSFR or either of their investment advisors, or any of their subsidiaries or joint ventures or any of their respective securities (each, an “Extraordinary Transaction”), or make any statement or disclosure regarding any intent, purpose, plan or proposal with respect to any Extraordinary Transaction or this Agreement that is inconsistent with the provisions of this Agreement, including any intent, purpose, plan or proposal that is conditioned on, or would require waiver, amendment, nullification or invalidation of, any provision of this Agreement or take any action that could require the Company or FSFR to make any public disclosure relating to any such intent, purpose, plan, proposal or condition;
(i) (i) call or seek to call or request the calling of any meeting of stockholders at either the Company or FSFR, including by written consent, (ii) seek, whether alone or in concert with others, representation onto seek to propose to MacroGenics any merger, business combination, restructuring, recapitalization or nominate any candidate tosimilar transaction with respect to or with MacroGenics or otherwise act, the Company Board or the FSFR Board, (iii) seek the removal of any member of the Company Board or the FSFR Board, (iv) seek, whether alone or in concert with others, or support any Third Party in seeking, to replace the investment advisor of the Company or the investment advisor of FSFR, (v) solicit consents from the Company or FSFR stockholders or otherwise act or seek to act by written consentcontrol, (vi) conduct a referendum change the management or Board of the Company Directors of MacroGenics, or FSFR stockholders or (vii) make a request for nominate any stockholders list or any other books and records in Sellers’ capacity person as a Company or FSFR stockholderdirector of MacroGenics who is not nominated by the then incumbent directors;
(j) purchase or cause to be purchased or otherwise acquire or agree to acquire beneficial ownership of any securities issued by the Company or FSFR, or any securities convertible into or exchangeable for securities issued by the Company or FSFR;
(k) sell, offer to sell, give, pledge, grant a security interest in, encumber, assign, grant any option for the sale of or otherwise transfer or dispose of (each, a “Transfer”) any securities issued by the Company and/or any securities convertible into or exchangeable for securities issued by the Company, unless any Buyer fails to timely perform each of its obligations under Section 1.2(b), Section 1.3(c) and/or Section 1.3(d)(i) of this Agreement;
(l) institute, solicit or join, as a party, or knowingly assist any other person in instituting, soliciting or joining, any litigation, arbitration or other proceeding against the Company or FSFR or any of their current or former directors or officers (including derivative actions), other than (i) litigation to enforce the provisions of this Agreement and (ii) counterclaims with respect to any proceeding initiated by, or on behalf of, a party to this Agreement or FSFR against Sellers;
(m) enter into or engage in any short sale or purchase, sale or grant of any option, warrant, derivative, convertible security, stock appreciation right or other similar right (including, without limitation, any put or call option or swap transaction) with respect to or having any measurement relating to any securities of the Companies;
(n) 14.1.5 enter into any discussion, negotiations, arrangements, understanding arrangements or agreements (whether written or oral) with, or advise, finance, assist, seek to knowingly persuade or encourage, any Third Party to take any action or make any statement in connection understandings with any of the foregoingthird party with respect to, or make any investment in or enter into any arrangement with any other person that engages, or offers or proposes to engage, in any of the foregoing, or otherwise take or cause any action or make any statement inconsistent with any of the foregoing; or
or Notwithstanding the foregoing, nothing in this Agreement shall limit Gilead’s ability to (ox) take any action challenging the validity or enforceability of this Agreement, inquire or make a request, orally or in any way advance any request or proposal that writing, to the Company, FSFR, the Company Board chief executive officer or the FSFR Board amend, modify chairman of the board of directors of MacroGenics with respect to any amendment or waive waiver of any provision of this AgreementSection 14.1 or (y) make or submit to the chief executive officer or the chairman of the board of directors of MacroGenics a bona fide non-public proposal so long as such action would not reasonably be expected to require MacroGenics to make a public announcement relating thereto. If at any time during the Standstill Period, Gilead or, to its knowledge, any of its representatives are approached by any Third Party concerning Gilead’s participation in a transaction of the type referred to in Sections 14.1.1 through 14.1.5, Gilead shall, or shall use commercially reasonable efforts to cause its representative (as applicable) to, promptly inform such Third Party that Gilead is bound by certain confidentiality obligations in respect of MacroGenics.
Appears in 2 contracts
Samples: License Agreement (Macrogenics Inc), License Agreement (Macrogenics Inc)
Standstill. Effective from So long as the date Company has complied and is complying with its obligations set forth in this Agreement, during the Standstill Period, the Osmium Group and its Affiliates, will not, without the prior written consent of the Company or its Board:
(a) acquire, offer, seek or propose to acquire, or agree to acquire, directly or indirectly (including acquiring beneficial ownership as defined in Rule 13d-3 under the Exchange Act), by purchase or otherwise, any Voting Stock of the Company or direct or indirect rights to acquire any Voting Stock of the Company, or any assets of the Company or any Subsidiary or division of the Company, provided, however, that the Osmium Group may acquire in one or more transactions an aggregate number of shares of Voting Stock that when combined with all other holdings equals but does not exceed the Permitted Amount, and provided further, that any shares of Voting Stock held by the Independent Designee shall not be aggregated with the holdings of the Osmium Group solely as a result of the Company and the Osmium Group entering into this Agreement and continuing until the later of the certification of votes for the Company 2017 Annual Meeting of Stockholders operation hereof;
(b) make, or the certification of votes for the FSFR (as defined below) 2017 Annual Meeting of Stockholders (the “Standstill Period”), except to the extent expressly permitted by the terms of this Agreement, none of the Sellers shall, and Sellers shall cause their respective controlled Affiliates not toin any way participate, directly or indirectly, in any manner, alone or in concert with others:
(a) solicit, or knowingly encourage or in any way engage in any solicitation of, any proxies or consents or become a “participant” in a “solicitation,” directly or indirectly, of “proxies” to vote (as such terms are defined used in Regulation 14A under the Securities Exchange Act rules of 1934, as amended (the “Exchange Act”) of proxies or consents (including, without limitation, any solicitation of consents that seeks to call a special meeting of stockholders or by encouraging or participating in any “withhold” or similar campaignSEC), in each case, or seek to advise or influence any person or entity with respect to securities the voting of any Voting Stock of the Company or Fifth Street Senior Floating Rate Corp. (“FSFR”) or any securities convertible or exchangeable into or exercisable for any such securities (collectively, “securities of the Companies”);
(b) make any proposal for consideration by stockholders at any annual or special meeting of the stockholders of the Company or FSFR, whether pursuant to Rule 14a-8 under the Exchange Act, either such company’s constituent documents or otherwiseCompany;
(c) knowingly advise, encourage, support, instruct or influence make any person public announcement with respect to any to, or submit a proposal for or offer of the matters covered by this Section 3.1 (with or with respect without conditions) (including to the voting or disposition of Board), any securities of the Companies at any annual or special meeting of stockholders of extraordinary transaction involving the Company or FSFR, except in accordance with Section 3.4, any of its securities or seek to do soassets;
(d) agree, attempt, seek or propose to deposit any securities of the Companies in any voting trust or similar arrangement, or subject any securities of the Companies to any arrangement or agreement with respect to the voting thereof, except in accordance with Section 3.4;
(e) knowingly seek or encourage any person to submit nominations in furtherance of a “contested solicitation” or take other action for the election or removal of directors with respect to the Company or FSFR, including any action that is intended to, or is reasonably likely to result in, the replacement of the investment advisor of the Company or FSFR, or a modification to the terms or conditions of either the Company’s or FSFR’s investment advisory agreement;
(f) form, join in or in any way participate in a partnership, limited partnership, syndicate or 13D Group (other group, including, without limitation, a group as defined under Section 13(dthan the Osmium Group) in connection with any of the Exchange Act foregoing (it being understood that the “Independent Designee” shall not be deemed to be part of the Osmium Group solely as a result of the Company and the Osmium Group entering into this Agreement and the operation hereof);
(e) present at any annual meeting or any special meeting of the Company’s stockholders or through action by written consent any proposal for consideration for action by stockholders or (except such participation related to the reasonable unwinding of any such group currently existing as of the date of explicitly permitted by this Agreement) with propose any nominee for election to the Board or seek the removal of any member of the Board;
(f) make, or cause to be made, by press release or similar public statement to the press or media, or in an SEC filing, any statement or announcement that disparages the Company, its officers or its directors or any person who is not identified on Schedule I hereto (any such person, a “Third Party”), with respect to any securities has served as an officer or director of the Companies Company in the past (and the Company shall not make, or take cause to be made, by press release or similar public statement, including to the press or media or in an SEC filing, any other action statement or announcement that would interfere with disparages any member of the ability Osmium Group, the officers, directors, partners or employees of Sellers to vote any member of the Osmium Group, or any person who has served as an officer, director, partner or employee of any member of the Osmium Group in accordance with this Agreementthe past);
(g) make institute, solicit, assist or join, as a party, any disclosurelitigation, communication, announcement arbitration or statement regarding any intent, purpose, plan other proceeding against or proposal with respect to the FSC Board of Directors (the “Company Board”), the Company investment advisor or the terms and conditions of the Company’s investment advisory agreement, the FSFR Board of Directors (the “FSFR Board”), the FSFR investment advisor or the terms and conditions of FSFR’s investment advisory agreement, the Company, FSFR, or the management, policies or affairs of either involving the Company or FSFR, any of its current or with respect former directors or officers (including derivative actions) other than to this Agreement, that is inconsistent with enforce the provisions of this Agreement;
(h) effect or seek to effect, offer or propose to effect, cause or participate in, or in any way assist or facilitate any other person to effect or seek, offer or propose to effect or participate in, any tender or exchange offer, merger, consolidation, acquisition, scheme, arrangement, business combination, recapitalization, reorganization, sale or acquisition of assets, liquidation, dissolution, extraordinary dividend, significant share repurchase or other extraordinary transaction involving request the Company, FSFR or either of their investment advisors, Company or any of their subsidiaries its Representatives, directly or joint ventures or any of their respective securities (each, an “Extraordinary Transaction”), or make any statement or disclosure regarding any intent, purpose, plan or proposal with respect to any Extraordinary Transaction or this Agreement that is inconsistent with the provisions of this Agreement, including any intent, purpose, plan or proposal that is conditioned on, or would require waiver, amendment, nullification or invalidation of, any provision of this Agreement or take any action that could require the Company or FSFR to make any public disclosure relating to any such intent, purpose, plan, proposal or condition;
(i) (i) call or seek to call or request the calling of any meeting of stockholders at either the Company or FSFR, including by written consent, (ii) seek, alone or in concert with others, representation on, or nominate any candidate to, the Company Board or the FSFR Board, (iii) seek the removal of any member of the Company Board or the FSFR Board, (iv) seek, alone or in concert with others, or support any Third Party in seekingindirectly, to replace the investment advisor of the Company or the investment advisor of FSFR, (v) solicit consents from the Company or FSFR stockholders or otherwise act or seek to act by written consent, (vi) conduct a referendum of the Company or FSFR stockholders or (vii) make a request for any stockholders list or any other books and records in Sellers’ capacity as a Company or FSFR stockholder;
(j) purchase or cause to be purchased or otherwise acquire or agree to acquire beneficial ownership of any securities issued by the Company or FSFR, or any securities convertible into or exchangeable for securities issued by the Company or FSFR;
(k) sell, offer to sell, give, pledge, grant a security interest in, encumber, assign, grant any option for the sale of or otherwise transfer or dispose of (each, a “Transfer”) any securities issued by the Company and/or any securities convertible into or exchangeable for securities issued by the Company, unless any Buyer fails to timely perform each of its obligations under Section 1.2(b), Section 1.3(c) and/or Section 1.3(d)(i) of this Agreement;
(l) institute, solicit or join, as a party, or knowingly assist any other person in instituting, soliciting or joining, any litigation, arbitration or other proceeding against the Company or FSFR or any of their current or former directors or officers (including derivative actions), other than (i) litigation to enforce the provisions of this Agreement and (ii) counterclaims with respect to any proceeding initiated by, or on behalf of, a party to this Agreement or FSFR against Sellers;
(m) enter into or engage in any short sale or purchase, sale or grant of any option, warrant, derivative, convertible security, stock appreciation right or other similar right (including, without limitation, any put or call option or swap transaction) with respect to or having any measurement relating to any securities of the Companies;
(n) enter into any negotiations, arrangements, understanding or agreements (whether written or oral) with, or advise, finance, assist, seek to knowingly persuade or encourage, any Third Party to take any action or make any statement in connection with any of the foregoing, or make any investment in or enter into any arrangement with any other person that engages, or offers or proposes to engage, in any of the foregoing, or otherwise take or cause any action or make any statement inconsistent with any of the foregoing; or
(o) take any action challenging the validity or enforceability of this Agreement, or make or in any way advance any request or proposal that the Company, FSFR, the Company Board or the FSFR Board amend, modify amend or waive any provision of this AgreementSection 4.1 in a manner that would require public disclosure; or
(i) direct or instruct any of their respective Subsidiaries, Representatives or Affiliates to take any such action.
Appears in 2 contracts
Samples: Nomination and Standstill Agreement (Osmium Partners, LLC), Nomination and Standstill Agreement (Vitacost.com, Inc.)
Standstill. Effective Subject to the continued compliance of the Company with the terms of this Agreement and the Registration Rights Agreement, so long as any obligations of the Company remain pursuant to this Agreement or the Registration Rights Agreement, until the later to occur of the expiration of (i) a period of 12 months from the date of this Agreement and continuing until or (ii) the later permanent waiver effected in compliance with Section 10.5 hereof, following the resignation or removal of the certification Investor's designee from the Board of votes for Directors, of the Company 2017 Annual Meeting of Stockholders or the certification of votes for the FSFR (as defined below) 2017 Annual Meeting of Stockholders (the “Standstill Period”), except to the extent expressly permitted by the terms of this AgreementInvestors' rights under Section 4.1 and 4.2 hereof, none of the Sellers shallInvestors will, and Sellers shall cause their respective controlled Affiliates not towithout the prior written consent of the Company's Board of Directors:
(a) make, or in any way participate, directly or indirectly, in any mannersolicitation of proxies or consents (as such terms are used in the rules of the SEC), or seek to advise or influence any person or entity, with respect to the voting of any voting securities of the Company;
(b) initiate or propose any stockholder proposal with respect to the Company as described in Rule 14a-8 under the Securities Exchange Act;
(c) make any public announcement with respect to, or submit a proposal for, or offer of (with or without conditions) any extraordinary transaction involving the Company or any Subsidiary or division thereof or any of their securities or assets (it being acknowledged that informal discussions with the Board of Directors shall not be a breach of this provision);
(d) otherwise act alone or in concert with others:
(a) solicit, to seek to control or knowingly encourage influence the management, Board of Directors or in any way engage in any solicitation of, any proxies or consents or become a “participant” in a “solicitation,” directly or indirectly, as such terms are defined in Regulation 14A under the Securities Exchange Act of 1934, as amended (the “Exchange Act”) of proxies or consents (including, without limitation, any solicitation of consents that seeks to call a special meeting of stockholders or by encouraging or participating in any “withhold” or similar campaign), in each case, with respect to securities policies of the Company or Fifth Street Senior Floating Rate Corp. (“FSFR”) or any securities convertible or exchangeable into or exercisable for any such securities (collectivelyprovided, “securities of however, that nothing herein shall restrict the Companies”);
(b) make any proposal for consideration by stockholders at any annual or special meeting of the stockholders of the Company or FSFR, whether Investors from exercising their rights pursuant to Rule 14a-8 Section 4.1 hereof and the rights of their designee on the Board of Directors under applicable law and the Exchange Act, either such company’s constituent documents or otherwise;
(c) knowingly advise, encourage, support, instruct or influence any person with respect to any Company's Certificate of the matters covered by this Section 3.1 or with respect to the voting or disposition of any securities of the Companies at any annual or special meeting of stockholders of the Company or FSFR, except in accordance with Section 3.4, or seek to do so;
(d) agree, attempt, seek or propose to deposit any securities of the Companies in any voting trust or similar arrangement, or subject any securities of the Companies to any arrangement or agreement with respect to the voting thereof, except in accordance with Section 3.4;Incorporation and By-laws); or
(e) knowingly seek or encourage any person to submit nominations in furtherance of a “contested solicitation” or take other action for the election or removal of directors with respect to the Company or FSFR, including any action that is intended to, or is reasonably likely to result in, the replacement of the investment advisor of the Company or FSFR, or a modification to the terms or conditions of either the Company’s or FSFR’s investment advisory agreement;
(f) form, join in or in any way participate in a partnership, limited partnership, syndicate or other "group, including, without limitation, a group " as defined under Section 13(d) of in the Securities Exchange Act (except such participation related to the reasonable unwinding of any such group currently existing as of the date of this Agreement) with any person who is not identified on Schedule I hereto (any such person, a “Third Party”), with respect to any securities of the Companies or take any other action that would interfere with the ability of Sellers to vote in accordance with this Agreement;
(g) make any disclosure, communication, announcement or statement regarding any intent, purpose, plan or proposal with respect to the FSC Board of Directors (the “Company Board”), the Company investment advisor or the terms and conditions of the Company’s investment advisory agreement, the FSFR Board of Directors (the “FSFR Board”), the FSFR investment advisor or the terms and conditions of FSFR’s investment advisory agreement, the Company, FSFR, or the management, policies or affairs of either the Company or FSFR, or with respect to this Agreement, that is inconsistent with the provisions of this Agreement;
(h) effect or seek to effect, offer or propose to effect, cause or participate in, or in any way assist or facilitate any other person to effect or seek, offer or propose to effect or participate in, any tender or exchange offer, merger, consolidation, acquisition, scheme, arrangement, business combination, recapitalization, reorganization, sale or acquisition of assets, liquidation, dissolution, extraordinary dividend, significant share repurchase or other extraordinary transaction involving the Company, FSFR or either of their investment advisors, or any of their subsidiaries or joint ventures or any of their respective securities (each, an “Extraordinary Transaction”), or make any statement or disclosure regarding any intent, purpose, plan or proposal with respect to any Extraordinary Transaction or this Agreement that is inconsistent with the provisions of this Agreement, including any intent, purpose, plan or proposal that is conditioned on, or would require waiver, amendment, nullification or invalidation of, any provision of this Agreement or take any action that could require the Company or FSFR to make any public disclosure relating to any such intent, purpose, plan, proposal or condition;
(i) (i) call or seek to call or request the calling of any meeting of stockholders at either the Company or FSFR, including by written consent, (ii) seek, alone or in concert with others, representation on, or nominate any candidate to, the Company Board or the FSFR Board, (iii) seek the removal of any member of the Company Board or the FSFR Board, (iv) seek, alone or in concert with others, or support any Third Party in seeking, to replace the investment advisor of the Company or the investment advisor of FSFR, (v) solicit consents from the Company or FSFR stockholders or otherwise act or seek to act by written consent, (vi) conduct a referendum of the Company or FSFR stockholders or (vii) make a request for any stockholders list or any other books and records in Sellers’ capacity as a Company or FSFR stockholder;
(j) purchase or cause to be purchased or otherwise acquire or agree to acquire beneficial ownership of any securities issued by the Company or FSFR, or any securities convertible into or exchangeable for securities issued by the Company or FSFR;
(k) sell, offer to sell, give, pledge, grant a security interest in, encumber, assign, grant any option for the sale of or otherwise transfer or dispose of (each, a “Transfer”) any securities issued by the Company and/or any securities convertible into or exchangeable for securities issued by the Company, unless any Buyer fails to timely perform each of its obligations under Section 1.2(b), Section 1.3(c) and/or Section 1.3(d)(i) of this Agreement;
(l) institute, solicit or join, as a party, or knowingly assist any other person in instituting, soliciting or joining, any litigation, arbitration or other proceeding against the Company or FSFR or any of their current or former directors or officers (including derivative actions), other than (i) litigation to enforce the provisions of this Agreement and (ii) counterclaims with respect to any proceeding initiated by, or on behalf of, a party to this Agreement or FSFR against Sellers;
(m) enter into or engage in any short sale or purchase, sale or grant of any option, warrant, derivative, convertible security, stock appreciation right or other similar right (including, without limitation, any put or call option or swap transaction) with respect to or having any measurement relating to any securities of the Companies;
(n) enter into any negotiations, arrangements, understanding or agreements (whether written or oral) withAct, or advise, finance, assist, seek to knowingly persuade assist or encourage, encourage any Third Party to take any action or make any statement other person in connection with any of the foregoing, . Each Investor shall promptly advise the Company of any inquiry or make any investment in or enter into any arrangement proposal made to such Investor with any other person that engages, or offers or proposes respect to engage, in any of the foregoing, or otherwise take or cause any action or make any statement inconsistent with any of the foregoing; or
(o) take any action challenging the validity or enforceability of this Agreement, or make or in any way advance any request or proposal that the Company, FSFR, the Company Board or the FSFR Board amend, modify or waive any provision of this Agreement.
Appears in 2 contracts
Samples: Purchase Agreement (Penril Datacomm Networks Inc), Stock Purchase Agreement (Pequot General Partners)
Standstill. Effective from the date of this Agreement and continuing until the later of the certification of votes for the Company 2017 Annual Meeting of Stockholders or the certification of votes for the FSFR (as defined below) 2017 Annual Meeting of Stockholders (the “Standstill Period”), except to the extent expressly permitted by the terms of this Agreement, none of the Sellers shall, and Sellers shall cause their respective controlled Affiliates not to, directly or indirectly, in any manner, alone or in concert with others:
(a) solicitDuring the Standstill Period, without the prior written approval of a majority of the Independent Directors, Freeport shall not, and shall not permit its controlled affiliates to: (i) acquire, offer or propose to acquire, or knowingly encourage agree or seek to acquire, or solicit the acquisition of, by purchase or otherwise, any equity, debt or equity-linked securities of the Issuer if, following such acquisition, Freeport and its controlled affiliates would own securities of the Issuer representing more than 103% of the percentage of the outstanding shares of Common Stock (including shares of Common Stock issuable upon conversion of any Preferred Shares owned by Freeport and its controlled affiliates) owned by Freeport and its controlled affiliates on the date hereof (including shares of Common Stock issuable upon conversion of any Preferred Shares owned by Freeport and its controlled affiliates); (ii) form, join or in any way engage participate in, or enter into any agreement, arrangement or understanding with, a “group” (within the meaning of Section 13(d)(3) of the Exchange Act and the rules and regulations thereunder) with respect to any equity or equity-linked securities of the Issuer; (iii) commence any tender or exchange offer for any securities of the Issuer; (iv) enter into or agree, offer, propose or seek (whether publicly or otherwise) to enter into, or otherwise be involved in any solicitation or part of, any proxies acquisition transaction, merger or consents other business combination relating to all or become a “participant” in a “solicitation,” directly part of the Issuer or indirectly, as such terms are defined in Regulation 14A under any of its subsidiaries or any acquisition transaction for all or part of the Securities Exchange Act assets of 1934, as amended the Issuer or any of its subsidiaries or any of their respective businesses; (the “Exchange Act”v) of proxies call or consents (including, without limitation, any solicitation of consents that seeks seek to call a special meeting of stockholders or by encouraging or participating in any “withhold” or similar campaign), in each case, with respect to securities of the Company or Fifth Street Senior Floating Rate Corp. (“FSFR”) or any securities convertible or exchangeable into or exercisable for any such securities (collectively, “securities of the Companies”);
(b) make any proposal for consideration by stockholders at any annual or special meeting of the stockholders of the Company Issuer or FSFRinitiate any stockholder proposal for action by stockholders of the Issuer; (vi) enter into any discussions, whether pursuant to Rule 14a-8 under the Exchange Actnegotiations, either such company’s constituent documents arrangements or otherwise;
(c) knowingly advise, encourage, support, instruct or influence understandings with any other person with respect to any of the matters covered by this Section 3.1 foregoing activities; (vii) advise, assist, encourage, act as a financing source for or with respect to the voting or disposition of any securities of the Companies at any annual or special meeting of stockholders of the Company or FSFR, except otherwise invest in accordance with Section 3.4, or seek to do so;
(d) agree, attempt, seek or propose to deposit any securities of the Companies in any voting trust or similar arrangement, or subject any securities of the Companies to any arrangement or agreement with respect to the voting thereof, except in accordance with Section 3.4;
(e) knowingly seek or encourage any person to submit nominations in furtherance of a “contested solicitation” or take other action for the election or removal of directors with respect to the Company or FSFR, including any action that is intended to, or is reasonably likely to result in, the replacement of the investment advisor of the Company or FSFR, or a modification to the terms or conditions of either the Company’s or FSFR’s investment advisory agreement;
(f) form, join in or in any way participate in a partnership, limited partnership, syndicate or other group, including, without limitation, a group as defined under Section 13(d) of the Exchange Act (except such participation related to the reasonable unwinding of any such group currently existing as of the date of this Agreement) with any person who is not identified on Schedule I hereto (any such person, a “Third Party”), with respect to any securities of the Companies or take any other action that would interfere with the ability of Sellers to vote in accordance with this Agreement;
(g) make any disclosure, communication, announcement or statement regarding any intent, purpose, plan or proposal with respect to the FSC Board of Directors (the “Company Board”), the Company investment advisor or the terms and conditions of the Company’s investment advisory agreement, the FSFR Board of Directors (the “FSFR Board”), the FSFR investment advisor or the terms and conditions of FSFR’s investment advisory agreement, the Company, FSFR, or the management, policies or affairs of either the Company or FSFR, or with respect to this Agreement, that is inconsistent with the provisions of this Agreement;
(h) effect or seek to effect, offer or propose to effect, cause or participate in, or in any way assist or facilitate any other person to effect or seek, offer or propose to effect or participate in, any tender or exchange offer, merger, consolidation, acquisition, scheme, arrangement, business combination, recapitalization, reorganization, sale or acquisition of assets, liquidation, dissolution, extraordinary dividend, significant share repurchase or other extraordinary transaction involving the Company, FSFR or either of their investment advisors, or any of their subsidiaries or joint ventures or any of their respective securities (each, an “Extraordinary Transaction”), or make any statement or disclosure regarding any intent, purpose, plan or proposal with respect to any Extraordinary Transaction or this Agreement that is inconsistent with the provisions of this Agreement, including any intent, purpose, plan or proposal that is conditioned on, or would require waiver, amendment, nullification or invalidation of, any provision of this Agreement or take any action that could require the Company or FSFR to make any public disclosure relating to any such intent, purpose, plan, proposal or condition;
(i) (i) call or seek to call or request the calling of any meeting of stockholders at either the Company or FSFR, including by written consent, (ii) seek, alone or in concert with others, representation on, or nominate any candidate to, the Company Board or the FSFR Board, (iii) seek the removal of any member of the Company Board or the FSFR Board, (iv) seek, alone or in concert with others, or support any Third Party in seeking, to replace the investment advisor of the Company or the investment advisor of FSFR, (v) solicit consents from the Company or FSFR stockholders or otherwise act or seek to act by written consent, (vi) conduct a referendum of the Company or FSFR stockholders or (vii) make a request for any stockholders list or any other books and records in Sellers’ capacity as a Company or FSFR stockholder;
(j) purchase or cause to be purchased or otherwise acquire or agree to acquire beneficial ownership of any securities issued by the Company or FSFR, or any securities convertible into or exchangeable for securities issued by the Company or FSFR;
(k) sell, offer to sell, give, pledge, grant a security interest in, encumber, assign, grant any option for the sale of or otherwise transfer or dispose of (each, a “Transfer”) any securities issued by the Company and/or any securities convertible into or exchangeable for securities issued by the Company, unless any Buyer fails to timely perform each of its obligations under Section 1.2(b), Section 1.3(c) and/or Section 1.3(d)(i) of this Agreement;
(l) institute, solicit or join, as a party, or knowingly assist any other person in instituting, soliciting or joining, any litigation, arbitration or other proceeding against the Company or FSFR or any of their current or former directors or officers (including derivative actions), other than (i) litigation to enforce the provisions of this Agreement and (ii) counterclaims with respect to any proceeding initiated by, or on behalf of, a party to this Agreement or FSFR against Sellers;
(m) enter into or engage in any short sale or purchase, sale or grant of any option, warrant, derivative, convertible security, stock appreciation right or other similar right (including, without limitation, any put or call option or swap transaction) with respect to or having any measurement relating to any securities of the Companies;
(n) enter into any negotiations, arrangements, understanding or agreements (whether written or oral) with, or advise, finance, assist, seek to knowingly persuade or encourage, any Third Party to take any action or make any statement in connection with any of the foregoing, or make any investment in or enter into any arrangement with any other person that engages, or offers or proposes to engage, in any of the foregoing, or otherwise foregoing activities; (viii) take or cause any action inconsistent with the purpose and intent of this Section 2.3; (ix) disclose any intention, plan or make any statement arrangement inconsistent with any of the foregoing, (x) with respect to any of the foregoing provisions of this paragraph, request the Issuer to amend or waive any such provisions or otherwise consent to any action inconsistent with any such provisions; or
(oxi) take any initiative with respect to the Issuer which could require the Issuer to make a public announcement regarding (A) such initiative or (B) any of the foregoing activities; or (xii) bring any action challenging or otherwise act to contest the validity or enforceability of this Section 2.3.
(b) Notwithstanding anything to the contrary set forth in this Agreement, the members of Freeport’s Board of Directors who are not also Shared Management Members shall be permitted to communicate on a confidential basis with the Independent Directors regarding any matter, including potential transactions between Freeport and the Issuer and potential waivers or make or in any way advance any request or proposal that amendments to the Company, FSFR, the Company Board or the FSFR Board amend, modify or waive any provision terms of this Agreement.
(c) Each of the Parties agrees that any supplement, modification, amendment, or waiver by the Issuer of the terms or provisions of that certain Stockholder Agreement, dated as of September [_], 2010, by and between the Issuer and Plains, with respect to a transaction, arrangement or understanding involving both Plains or its controlled affiliates and Freeport or its controlled affiliates must be approved in writing in advance by a committee of the Board consisting solely of members of the Board who are Independent Directors.
Appears in 2 contracts
Samples: Stock Purchase Agreement (McMoran Exploration Co /De/), Stock Purchase Agreement (Freeport McMoran Copper & Gold Inc)
Standstill. Effective from the date of this Agreement and continuing until the later Each of the certification of votes for the Company 2017 Annual Meeting of Stockholders or the certification of votes for the FSFR (as defined below) 2017 Annual Meeting of Stockholders (the “Standstill Period”), except to the extent expressly permitted by the terms of this Agreement, none members of the Sellers shallKleinheinz Group agrees that, during the Standstill Period and provided that Company has complied and is complying with the Principal Obligations, he or it will not, and Sellers shall he or it will cause their respective controlled each of such person’s Affiliates or agents or other persons acting on his or its behalf not to, directly and will cause his or indirectly, in any manner, alone or in concert with othersits respective Associates not to:
(a) solicit, or knowingly encourage or in submit any way engage in any solicitation of, any proxies or consents or become a “participant” in a “solicitation,” directly or indirectly, as such terms are defined in Regulation 14A stockholder proposal (pursuant to Rule 14a-8 promulgated by the SEC under the Securities Exchange Act of 1934, as amended (the “Exchange Act”) of proxies or consents (including, without limitation, any solicitation of consents that seeks to call a special meeting of stockholders or by encouraging or participating in any “withhold” or similar campaign), in each case, with respect to securities of the Company or Fifth Street Senior Floating Rate Corp. (“FSFR”otherwise) or any securities convertible notice of nomination or exchangeable into other business for consideration, or exercisable nominate any candidate for any such securities (collectivelyelection to the Board, “securities of the Companies”)other than as expressly permitted by this Agreement ;
(b) make any proposal for consideration by stockholders at any annual or special meeting of the stockholders of the Company or FSFR, whether pursuant to Rule 14a-8 under the Exchange Act, either such company’s constituent documents or otherwise;
(c) knowingly advise, encourage, support, instruct or influence any person with respect to any of the matters covered by this Section 3.1 or with respect to the voting or disposition of any securities of the Companies at any annual or special meeting of stockholders of the Company or FSFR, except in accordance with Section 3.4, or seek to do so;
(d) agree, attempt, seek or propose to deposit any securities of the Companies in any voting trust or similar arrangement, or subject any securities of the Companies to any arrangement or agreement with respect to the voting thereof, except in accordance with Section 3.4;
(e) knowingly seek or encourage any person to submit nominations in furtherance of a “contested solicitation” or take other action for the election or removal of directors with respect to the Company or FSFR, including any action that is intended to, or is reasonably likely to result in, the replacement of the investment advisor of the Company or FSFR, or a modification to the terms or conditions of either the Company’s or FSFR’s investment advisory agreement;
(f) form, join in or in any other way participate in a “partnership, limited partnership, syndicate or other group, including, without limitation, a group as defined under ” within the meaning of Section 13(d13(d)(3) of the Exchange Act (except such participation related to the reasonable unwinding of any such group currently existing as of the date of this Agreement) with any person who is not identified on Schedule I hereto (any such person, a “Third Party”), with respect to any securities of the Companies or take any other action that would interfere with the ability of Sellers to vote in accordance with this Agreement;
(g) make any disclosure, communication, announcement or statement regarding any intent, purpose, plan or proposal with respect to the FSC Board Common Stock or deposit any shares of Directors (the “Company Board”)Common Stock in a voting trust or similar arrangement or subject any shares of Common Stock to any voting agreement or pooling arrangement, the Company investment advisor or the terms and conditions other than solely with other members of the Company’s investment advisory agreement, Kleinheinz Group or one or more Affiliates of a member of the FSFR Board Kleinheinz Group with respect to the Common Stock currently owned as set forth in Section 2(c) of Directors (this Agreement or to the “FSFR Board”), the FSFR investment advisor or the terms and conditions of FSFR’s investment advisory agreement, the Company, FSFR, or the management, policies or affairs of either extent such a group may be deemed to result with the Company or FSFR, or with respect to this Agreement, that is inconsistent with the provisions any of its Affiliates as a result of this Agreement;
(hc) solicit proxies or written consents of stockholders, or otherwise conduct any nonbinding referendum with respect to Common Stock, or make, or in any way participate in, any “solicitation” of any “proxy” within the meaning of Rule 14a-1 promulgated by the SEC under the Exchange Act to vote, or advise, encourage or influence any person with respect to voting, any shares of Common Stock with respect to any matter, or become a “participant” in any contested “solicitation” for the election of directors with respect to the Company (as such terms are defined or used under the Exchange Act and the rules promulgated by the SEC thereunder), other than a “solicitation” or acting as a “participant” in support of all of the nominees of the Board at the 2010 and 2011 Annual Meetings of Stockholders;
(d) seek, in any capacity other than as a member of the Board, to call, or to request the call of, a special meeting of the stockholders of the Company, or seek to make, or make, a stockholder proposal at any meeting of the stockholders of the Company or make a request for a list of the Company’s stockholders (or otherwise induce, encourage or assist any other person to initiate or pursue such a proposal or request) or otherwise acting alone, or in concert with others, seek to control or influence the governance or policies of the Company, except as expressly permitted by this Agreement;
(e) effect or seek to effect, in any capacity other than as a member of the Board (including, without limitation, by 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 or facilitate any other person to effect or seek, offer or propose (whether publicly or otherwise) to effect or cause or participate inin (i) any acquisition of any material assets or businesses of the Company or any of its subsidiaries, (ii) any tender offer or exchange offer, merger, consolidationacquisition or other business combination involving the Company or any of its subsidiaries, acquisition, scheme, arrangement, business combination, or (iii) any recapitalization, reorganization, sale or acquisition of assetsrestructuring, liquidation, dissolution, extraordinary dividend, significant share repurchase dissolution or other extraordinary transaction involving with respect to the Company, FSFR or either of their investment advisors, Company or any of their subsidiaries its subsidiaries;
(f) publicly disclose, or joint ventures cause or facilitate the public disclosure (including without limitation the filing of any document or report with the SEC or any other governmental agency or any disclosure to any journalist, member of their respective the media or securities (eachanalyst) of, an “Extraordinary Transaction”), or make any statement or disclosure regarding any intent, purpose, plan or proposal with respect to obtain any Extraordinary Transaction waiver, or this Agreement that is inconsistent with consent under, or any amendment of, any of the provisions of Section 4(d) or this Agreement, including any intent, purpose, plan or proposal that is conditioned onSection 5, or otherwise seek (in any manner that would require public disclosure by any of the members of the Kleinheinz Group or their Affiliates or Associates) to obtain any waiver, amendmentconsent under, nullification or invalidation amendment of, any provision of this Agreement or take any action that could require the Company or FSFR to make any public disclosure relating to any such intent, purpose, plan, proposal or conditionAgreement;
(ig) (i) call or seek to call or request the calling of any meeting of stockholders at either the Company or FSFR, including by written consent, (ii) seek, alone or in concert with others, representation on, or nominate any candidate to, the Company Board or the FSFR Board, (iii) seek the removal of publicly disparage any member of the Company Board or the FSFR Board, (iv) seek, alone or in concert with others, or support any Third Party in seeking, to replace the investment advisor management of the Company or the investment advisor of FSFR, (v) solicit consents from the Company or FSFR stockholders or otherwise act or seek to act by written consent, (vi) conduct a referendum of the Company or FSFR stockholders or (vii) make a request for any stockholders list or any other books and records in Sellers’ capacity as a Company or FSFR stockholderCompany;
(j) purchase or cause to be purchased or otherwise acquire or agree to acquire beneficial ownership of any securities issued by the Company or FSFR, or any securities convertible into or exchangeable for securities issued by the Company or FSFR;
(k) sell, offer to sell, give, pledge, grant a security interest in, encumber, assign, grant any option for the sale of or otherwise transfer or dispose of (each, a “Transfer”) any securities issued by the Company and/or any securities convertible into or exchangeable for securities issued by the Company, unless any Buyer fails to timely perform each of its obligations under Section 1.2(b), Section 1.3(c) and/or Section 1.3(d)(i) of this Agreement;
(l) institute, solicit or join, as a party, or knowingly assist any other person in instituting, soliciting or joining, any litigation, arbitration or other proceeding against the Company or FSFR or any of their current or former directors or officers (including derivative actions), other than (i) litigation to enforce the provisions of this Agreement and (ii) counterclaims with respect to any proceeding initiated by, or on behalf of, a party to this Agreement or FSFR against Sellers;
(m) enter into or engage in any short sale or purchase, sale or grant of any option, warrant, derivative, convertible security, stock appreciation right or other similar right (including, without limitation, any put or call option or swap transaction) with respect to or having any measurement relating to any securities of the Companies;
(nh) enter into any negotiations, arrangements, understanding understandings or agreements (whether written or oral) with, or advise, finance, assist, seek to knowingly persuade assist or encourage, any Third Party to take any action or make any statement in connection with any of the foregoing, or make any investment in or enter into any arrangement with any other person that engages, or offers or proposes to engage, in any of the foregoing, or otherwise ; or
(i) take or cause or induce or assist others to take any action or make any statement inconsistent with any of the foregoing; or
(o) take any action challenging the validity or enforceability of . It is understood and agreed that this Agreement, or make or Agreement shall not be deemed to prohibit Kleinheinz from engaging in any way advance any request or proposal that lawful act in his capacity as a director of the Company, FSFR, the Company Board or the FSFR Board amend, modify or waive any provision of this Agreement.
Appears in 2 contracts
Samples: Board Representation Agreement (Alloy Inc), Board Representation Agreement (SRB Management, L.P.)
Standstill. Effective (a) The Iroquois Group will not (A) nominate or recommend for nomination any person for election at the 2016 Annual Meeting, directly or indirectly, (B) submit any proposal for consideration at, or bring any other business before, the 2016 Annual Meeting, directly or indirectly, or (C) initiate, encourage or participate in any “vote no,” “withhold” or similar campaign with respect to the 2016 Annual Meeting, directly or indirectly. The Iroquois Group shall not publicly or privately encourage or support any other stockholder to take any of the actions described herein.
(b) The Iroquois Group agrees that, from the date Effective Date of this the Agreement and continuing until the later date that Xx. Xxxxxxxxx is no longer serving as a member of the certification Company’s Board, neither it nor any of votes for the Company 2017 Annual Meeting of Stockholders its affiliates or the certification of votes for the FSFR (as defined below) 2017 Annual Meeting of Stockholders (the “Standstill Period”), except to the extent expressly permitted by the terms of this Agreement, none of the Sellers shallassociates will, and Sellers shall it will cause their respective controlled Affiliates each of its affiliates and associates not to, directly or indirectly, in any manner, alone or in concert with others:
(ai) solicit, or knowingly encourage or in any way engage in any solicitation of, any of proxies or consents or become a “participant” in a “solicitation,” directly or indirectly, as such terms are defined in Regulation 14A under the Securities Exchange Act of 1934, as amended (the “Exchange Act”) of proxies or consents (including, without limitation, any solicitation of consents that seeks to call a special meeting of stockholders or by encouraging or participating in any “withhold” or similar campaign)consents, in each case, with respect to securities of the Company or Fifth Street Senior Floating Rate Corp. (“FSFR”) or any securities convertible or exchangeable into or exercisable for any such securities (collectively, “securities of the Companies”)Company;
(bii) make form, join or in any proposal for consideration by stockholders at way participate in any annual or special meeting “group” (within the meaning of the stockholders Section 13(d)(3) of the Company or FSFR, whether pursuant to Rule 14a-8 under the Exchange Act, either such company’s constituent documents or otherwise;
(c) knowingly advise, encourage, support, instruct or influence any person with respect to any of the matters covered by this Section 3.1 or with respect to the voting or disposition of any securities common stock of the Companies at any annual or special meeting Company, par value $0.0001 per share (the “Common Stock”); provided, however, that nothing shall limit the ability of stockholders an affiliate of the Company or FSFRIroquois Group to join the “group” following the execution of this Agreement, except in accordance with Section 3.4, or seek so long as any such affiliate agrees to do sobe bound by these standstill provisions;
(diii) agree, attempt, seek or propose to deposit any securities of the Companies Common Stock in any voting trust or similar arrangement, or subject any securities of the Companies Common Stock to any arrangement or agreement with respect to the voting thereofof any Common Stock, except other than any such voting trust, arrangement or agreement solely among the members of the Iroquois Group and otherwise in accordance with Section 3.4this Agreement;
(eiv) knowingly seek or encourage any person to submit nominations in furtherance of a “contested solicitation” or take other action for the election or removal of directors with respect to the Company or FSFRseek, including any action that is intended to, or is reasonably likely to result in, the replacement of the investment advisor of the Company or FSFR, or a modification to the terms or conditions of either the Company’s or FSFR’s investment advisory agreement;
(f) form, join in or in any way participate in a partnership, limited partnership, syndicate or other group, including, without limitation, a group as defined under Section 13(d) of the Exchange Act (except such participation related to the reasonable unwinding of any such group currently existing as of the date of this Agreement) with any person who is not identified on Schedule I hereto (any such person, a “Third Party”), with respect to any securities of the Companies encourage or take any other action that would interfere with the ability of Sellers to vote in accordance with this Agreement;
(g) make any disclosure, communication, announcement or statement regarding any intent, purpose, plan or proposal with respect to the FSC Board election or removal of Directors (the “Company Board”), the Company investment advisor or the terms and conditions of the Company’s investment advisory agreement, the FSFR Board of Directors (the “FSFR Board”), the FSFR investment advisor or the terms and conditions of FSFR’s investment advisory agreement, the Company, FSFR, or the management, policies or affairs of either the Company or FSFR, or with respect to this Agreement, that is inconsistent with the provisions of this Agreementany directors;
(h) effect or seek to effect, offer or propose to effect, cause or participate in, or in any way assist or facilitate any other person to effect or seek, offer or propose to effect or participate in, any tender or exchange offer, merger, consolidation, acquisition, scheme, arrangement, business combination, recapitalization, reorganization, sale or acquisition of assets, liquidation, dissolution, extraordinary dividend, significant share repurchase or other extraordinary transaction involving the Company, FSFR or either of their investment advisors, or any of their subsidiaries or joint ventures or any of their respective securities (each, an “Extraordinary Transaction”), or make any statement or disclosure regarding any intent, purpose, plan or proposal with respect to any Extraordinary Transaction or this Agreement that is inconsistent with the provisions of this Agreement, including any intent, purpose, plan or proposal that is conditioned on, or would require waiver, amendment, nullification or invalidation of, any provision of this Agreement or take any action that could require the Company or FSFR to make any public disclosure relating to any such intent, purpose, plan, proposal or condition;
(i) (i) call or seek to call or request the calling of any meeting of stockholders at either the Company or FSFR, including by written consent, (iiv) seek, alone or in concert with others, representation on, or nominate any candidate to, on the Company Board or the FSFR Board, (iii) seek the removal of any member of the Company Board or the FSFR Board, (iv) seek, alone or in concert with others, or support any Third Party in seeking, to replace the investment advisor of the Company or the investment advisor of FSFR, (v) solicit consents from the Company or FSFR stockholders or otherwise act or seek to act by written consent, ; or
(vi) conduct a referendum of the Company seek to advise, encourage, support or FSFR stockholders or (vii) make a request for influence any stockholders list or any other books and records in Sellers’ capacity as a Company or FSFR stockholder;
(j) purchase or cause to be purchased or otherwise acquire or agree to acquire beneficial ownership of any securities issued by the Company or FSFR, or any securities convertible into or exchangeable for securities issued by the Company or FSFR;
(k) sell, offer to sell, give, pledge, grant a security interest in, encumber, assign, grant any option for the sale of or otherwise transfer or dispose of (each, a “Transfer”) any securities issued by the Company and/or any securities convertible into or exchangeable for securities issued by the Company, unless any Buyer fails to timely perform each of its obligations under Section 1.2(b), Section 1.3(c) and/or Section 1.3(d)(i) of this Agreement;
(l) institute, solicit or join, as a party, or knowingly assist any other person in instituting, soliciting or joining, any litigation, arbitration or other proceeding against the Company or FSFR or any of their current or former directors or officers (including derivative actions), other than (i) litigation to enforce the provisions of this Agreement and (ii) counterclaims with respect to any proceeding initiated by, the voting or on behalf of, a party to this Agreement or FSFR against Sellers;
(m) enter into or engage in any short sale or purchase, sale or grant disposition of any option, warrant, derivative, convertible security, stock appreciation right or other similar right (including, without limitation, any put or call option or swap transaction) with respect to or having any measurement relating to any securities of the Companies;
(n) enter into Company at any negotiations, arrangements, understanding annual or agreements (whether written or oral) with, or advise, finance, assist, seek to knowingly persuade or encourage, any Third Party to take any action or make any statement in connection with any special meeting of the foregoing, or make any investment in or enter into any arrangement with any other person that engages, or offers or proposes to engage, in any of the foregoing, or otherwise take or cause any action or make any statement inconsistent with any of the foregoing; or
(o) take any action challenging the validity or enforceability of this Agreement, or make or in any way advance any request or proposal that the Company, FSFR, the Company Board or the FSFR Board amend, modify or waive any provision of this Agreementstockholders.
Appears in 2 contracts
Samples: Nomination, Standstill and Voting Agreement (Iroquois Capital Management, LLC), Nomination, Standstill and Voting Agreement (WPCS International Inc)
Standstill. Effective from During the date of this Agreement and continuing until Cooperation Period, without the later prior written consent of the certification of votes for the Company 2017 Annual Meeting of Stockholders or the certification of votes for the FSFR (as defined below) 2017 Annual Meeting of Stockholders (the “Standstill Period”)Board, except to the extent expressly permitted by the terms of this Agreement, none of the Sellers shallAlden shall not, and Sellers shall cause their respective controlled its Affiliates and Associates under its control not to, directly or indirectly, in any manner, alone or in concert with others:
(a) solicit(i) nominate, give notice of an intent to nominate, or knowingly recommend for nomination a person for election at any Stockholder Meeting at which directors of the Board are to be elected; (ii) initiate, encourage or in any way engage participate in any solicitation ofof proxies in respect of any election contest with respect to the Company’s directors; (iii) submit any stockholder proposal for consideration at, or bring any other business before, any proxies Stockholder Meeting; (iv) initiate, encourage or consents or become a “participant” participate in a “solicitation,” directly or indirectly, as such terms are defined in Regulation 14A under the Securities Exchange Act of 1934, as amended (the “Exchange Act”) of proxies or consents (including, without limitation, any solicitation of consents that seeks to call a special meeting proxies in respect of stockholders any stockholder proposal for consideration at, or by encouraging bring any other business before, any Stockholder Meeting; (v) initiate, encourage or participating participate in any “withhold” or similar campaign), in each case, campaign with respect to any Stockholder Meeting or any solicitation of written consents of stockholders; or (vi) request, or initiate, encourage or participate in any request to call, a special meeting of the Company’s stockholders; provided, however, that from and after November 15, 2018, nothing in this Agreement shall prevent Alden or its Affiliates or Associates from taking actions in furtherance of identifying director candidates in connection with the 2019 Annual Meeting or any Shareholder Requested Special Meeting scheduled to be held following the Termination Date, so long as such actions do not create a public disclosure obligation for Alden or the Company and are undertaken on a basis reasonably designed to be confidential and in accordance in all material respects with Alden’s normal practices in the circumstances;
(b) (i) acquire, offer or propose to acquire, or agree to acquire, directly or indirectly, whether by purchase, tender or exchange offer, through the acquisition of control of another person, by joining a partnership, limited partnership, syndicate or other group (including any group of persons that would be treated as a single “person” under Section 13(d) of the Exchange Act), through swap or hedging transactions or otherwise, any voting securities of the Company or Fifth Street Senior Floating Rate Corp. (“FSFR”) or any securities convertible or exchangeable into or exercisable for any such securities (collectively, “voting rights decoupled from the underlying voting securities of the Companies”Company; provided, however, that Alden and its Affiliates and Associates shall be permitted to acquire additional shares of Common Stock in accordance with Section 5(g);
; or (bii) make any proposal for consideration by stockholders at any annual knowingly sell, offer or special meeting of agree to sell through swap or hedging transactions or otherwise, the stockholders voting securities of the Company or FSFRany voting rights decoupled from the underlying voting securities held by Alden or its Affiliates or Associates to any filer of a Schedule 13D in respect of the Company or any stockholder of the Company who has an ownership interest of 5.0% or more of the then-outstanding shares of Common Stock at the time of such sale, whether pursuant to Rule 14a-8 under the Exchange Actoffer or agreement (except for Schedule 13G filers that are mutual funds, either such company’s constituent documents pension funds or otherwiseindex funds with no known history of activism);
(c) knowingly adviseform, encourage, support, instruct join or influence in any person way participate in any group with respect to any voting securities of the matters covered by this Section 3.1 Company in connection with any election or removal contest with respect to the voting Company’s directors or disposition any stockholder proposal or other business brought before any Stockholder Meeting; provided, however, that nothing herein shall limit the ability of an Affiliate of Alden to join Alden’s 13(d) “group” following the execution of this Agreement, so long as any securities such Affiliate agrees to be bound by the terms and conditions of the Companies at any annual or special meeting of stockholders of the Company or FSFR, except in accordance with Section 3.4, or seek to do sothis Agreement;
(d) agree, attempt, seek or propose to deposit any Company voting securities of the Companies in any voting trust or similar arrangement, or subject any Company voting securities of the Companies to any arrangement or agreement with respect to the voting thereof, except in accordance with Section 3.4;
(e) knowingly seek or encourage any person to submit nominations in furtherance of a “contested solicitation” or take other action for the election or removal of directors with respect to the Company or FSFR, including any action that is intended to, or is reasonably likely to result in, the replacement of the investment advisor of the Company or FSFR, or a modification to the terms or conditions of either the Company’s or FSFR’s investment advisory agreement;
(f) form, join in or in any way participate in a partnership, limited partnership, syndicate or other group, including, without limitation, a group as defined under Section 13(d) of the Exchange Act (except such participation related to the reasonable unwinding of any such group currently existing as of the date of this Agreement) with any person who is not identified on Schedule I hereto (any such person, a “Third Party”), with respect to any securities of the Companies or take any other action that would interfere with the ability of Sellers to vote in accordance with this Agreement;
(g) make any disclosure, communication, announcement or statement regarding any intent, purpose, plan or proposal with respect to the FSC Board of Directors (the “Company Board”), the Company investment advisor or the terms and conditions of the Company’s investment advisory agreement, the FSFR Board of Directors (the “FSFR Board”), the FSFR investment advisor or the terms and conditions of FSFR’s investment advisory agreement, the Company, FSFR, or the management, policies or affairs of either the Company or FSFR, or with respect to this Agreement, that is inconsistent with the provisions of this Agreement;
(h) effect or seek to effect, offer or propose to effect, cause or participate in, or in any way assist or facilitate any other person to effect or seek, offer or propose to effect or participate in, any tender or exchange offer, merger, consolidation, acquisition, scheme, arrangement, business combination, recapitalization, reorganization, sale or acquisition of assets, liquidation, dissolution, extraordinary dividend, significant share repurchase or other extraordinary transaction involving the Company, FSFR or either of their investment advisors, or any of their subsidiaries or joint ventures or any of their respective securities (each, an “Extraordinary Transaction”), or make any statement or disclosure regarding any intent, purpose, plan or proposal with respect to any Extraordinary Transaction or this Agreement that is inconsistent with the provisions of this Agreement, including any intent, purpose, plan or proposal that is conditioned on, or would require waiver, amendment, nullification or invalidation of, any provision of this Agreement or take any action that could require the Company or FSFR to make any public disclosure relating to any such intent, purpose, plan, proposal or condition;
(i) (i) call or seek to call or request the calling of any meeting of stockholders at either the Company or FSFR, including by written consent, (ii) seek, alone or in concert with others, representation onto amend any provision of the Company’s charter or bylaws; provided, however, that nothing herein shall be deemed to restrict the ability of any Alden Designee to privately propose any changes he deems appropriate in accordance with his fiduciary duties as a director of the Company;
(f) demand an inspection of the Company’s books and records;
(g) (i) make any offer or proposal (with or without conditions) with respect to any merger, acquisition, recapitalization, restructuring, disposition or other business combination involving Alden or its Affiliates or Associates and the Company, (ii) solicit a Third Party to make an offer or proposal (with or without conditions) with respect to any merger, acquisition, recapitalization, restructuring, disposition or other business combination involving the Company, or nominate any candidate topublicly encourage, the Company Board or the FSFR Board, (iii) seek the removal of any member of the Company Board or the FSFR Board, (iv) seek, alone or in concert with others, initiate or support any Third Party in seekingmaking such an offer or proposal, or (iii) publicly comment on any Third Party proposal regarding any merger, acquisition, recapitalization, restructuring, disposition, or other business combination with respect to replace the investment advisor of the Company or the investment advisor of FSFR, (v) solicit consents from the Company or FSFR stockholders or otherwise act or seek by such Third Party prior to act by written consent, (vi) conduct a referendum of the Company or FSFR stockholders or (vii) make a request for any stockholders list or any other books and records in Sellers’ capacity as a Company or FSFR stockholdersuch proposal becoming public;
(j) purchase or cause to be purchased or otherwise acquire or agree to acquire beneficial ownership of any securities issued by the Company or FSFR, or any securities convertible into or exchangeable for securities issued by the Company or FSFR;
(k) sell, offer to sell, give, pledge, grant a security interest in, encumber, assign, grant any option for the sale of or otherwise transfer or dispose of (each, a “Transfer”) any securities issued by the Company and/or any securities convertible into or exchangeable for securities issued by the Company, unless any Buyer fails to timely perform each of its obligations under Section 1.2(b), Section 1.3(c) and/or Section 1.3(d)(i) of this Agreement;
(l) institute, solicit or join, as a party, or knowingly assist any other person in instituting, soliciting or joining, any litigation, arbitration or other proceeding against the Company or FSFR or any of their current or former directors or officers (including derivative actions), other than (i) litigation to enforce the provisions of this Agreement and (ii) counterclaims with respect to any proceeding initiated by, or on behalf of, a party to this Agreement or FSFR against Sellers;
(m) enter into or engage in any short sale or purchase, sale or grant of any option, warrant, derivative, convertible security, stock appreciation right or other similar right (including, without limitation, any put or call option or swap transaction) with respect to or having any measurement relating to any securities of the Companies;
(nh) enter into any negotiations, arrangements, understanding agreements or agreements (whether written or oral) withunderstandings with any Third Party with respect to the foregoing, or advise, finance, assist, encourage or seek to knowingly persuade or encourage, any Third Party to take any action or make any statement in connection with any of the foregoing, or make any investment in or enter into any arrangement with any other person that engages, or offers or proposes respect to engage, in any of the foregoing, or otherwise take or cause any action or make any statement materially inconsistent with any of the foregoing; or
(oi) take any action challenging the validity or enforceability of this Section 3 or this Agreement, or publicly make or in any way advance publicly any request or proposal that the Company, FSFR, the Company Board or the FSFR Board amend, modify or waive any provision of this Agreement. Nothing in this Section 3 shall be deemed to limit the ability of any Alden Designee to exercise his fiduciary duties under law solely in his capacity as a director of the Company and in a manner consistent with his obligations under this Agreement. Notwithstanding anything in this Section 3 to the contrary, in respect of any stockholder vote on a proposal of the Company in respect of any Equity Issuance (other than any Pro Rata Equity Issuance), Alden shall be permitted to issue a one-time statement in accordance with Rule 14a-1(l)(iv) under the Exchange Act as to how Alden intends to vote and the reasons therefor. Such press release shall not exceed three sentences and forty words and shall be subject to Section 7 (Mutual Non-Disparagement) hereof. For the avoidance of doubt, with the exception of the foregoing one-time statement, Alden shall be prohibited, publicly and privately, from soliciting any proxies or otherwise advocating against any proposal of the Company in respect of any Equity Issuance. In addition, as of the execution and delivery of this Agreement, Alden hereby withdraws any and all prior demands to inspect the Company’s books and records and waives in all respects compliance by the Company with any applicable notice, response or other provisions of the applicable statutes relating thereto.
Appears in 2 contracts
Samples: Cooperation Agreement (Alden Global Capital LLC), Cooperation Agreement (Freds Inc)
Standstill. Effective from From and after the date of this Agreement Agreement, unless an exemption or waiver is otherwise approved in advance in writing by a majority of the Board (other than the Investor Nominees and continuing the Third Party Stockholder Nominees), each Stockholder, shall not, and shall cause its Affiliates and its and their Representatives acting on their behalf not to, until the later of the certification of votes for the Company 2017 Annual Meeting of Stockholders or the certification of votes for the FSFR (as defined below) 2017 Annual Meeting of Stockholders (the “Standstill Period”), except to the extent expressly permitted by the terms of this Agreement, none of the Sellers shall, and Sellers shall cause their respective controlled Affiliates not toFallaway Date, directly or indirectly, in any manner, alone or in concert with others:
(a) solicit, or knowingly encourage or in any way engage in any solicitation of, any proxies “solicitation” of “proxies” (as such terms are defined under Regulation 14A under the Exchange Act) or consents or relating to the election of Directors with respect to the Company, become a “participant” in a “solicitation,” directly or indirectly, (as such terms are term is defined in under Regulation 14A under the Securities Exchange Act of 1934, as amended (the “Exchange Act”) of proxies or consents (including, without limitation, in any solicitation seeking to elect Directors not nominated by the Board, or agree or announce an intention to vote with any Person undertaking a “solicitation”, or seek to advise or influence any Person or Group with respect to the voting of consents that seeks to call a special meeting any voting securities of stockholders or by encouraging or participating in any “withhold” or similar campaign)the Company, in each case, with respect thereto, other than (subject to securities Section 5.3) with respect to the election of the Company or Fifth Street Senior Floating Rate Corp. (“FSFR”) or any securities convertible or exchangeable into or exercisable for any such securities (collectively, “securities of the Companies”)Investor Nominees;
(b) make deposit any proposal for consideration by stockholders at any annual or special meeting of the stockholders voting securities of the Company in any voting trust or FSFR, whether pursuant similar arrangement (unless such securities remain subject to Rule 14a-8 under the Exchange Act, either such company’s constituent documents or otherwiserestrictions set forth in this Agreement);
(c) form, join, knowingly adviseencourage the formation of or knowingly engage in discussions relating to the formation of, encourageor participate in a Group for the purpose of seeking control, supportor influencing the control of, instruct the Company, except for the arrangements expressly set forth in this Agreement;
(d) make any public statement relating to seeking to control or influence influencing the management, Board or policies of the Company or any person of its subsidiaries other than, in each case, through participation on the Board and the applicable committees pursuant to Article VI (Corporate Governance) of this Agreement; provided, that the Investor Nominees shall not be permitted to take any public action or make any public statement in concert with the Third Party Stockholder Nominees with respect to the Company;
(e) offer or propose to acquire or agree to acquire (or request permission to do so), whether by joining or participating in a Group or otherwise, beneficial ownership of voting securities, except as permitted by and in accordance with Section 5.1 or Article IV;
(f) publicly seek or publicly request permission to do any of the foregoing, publicly request to amend or waive any provision of Section 5.1 or this Section 5.2 (including this clause (f)), or publicly make or publicly seek permission to make any public announcement with respect to any of the matters covered by this Section 3.1 or with respect to the voting or disposition of any securities of the Companies at any annual or special meeting of stockholders of the Company or FSFR, except in accordance with Section 3.4, or seek to do so;
(d) agree, attempt, seek or propose to deposit any securities of the Companies in any voting trust or similar arrangement, or subject any securities of the Companies to any arrangement or agreement with respect to the voting thereof, except in accordance with Section 3.4;
(e) knowingly seek or encourage any person to submit nominations in furtherance of a “contested solicitation” or take other action for the election or removal of directors with respect to the Company or FSFR, including any action that is intended to, or is reasonably likely to result in, the replacement of the investment advisor of the Company or FSFR, or a modification to the terms or conditions of either the Company’s or FSFR’s investment advisory agreement;
(f) form, join in or in any way participate in a partnership, limited partnership, syndicate or other group, including, without limitation, a group as defined under Section 13(d) of the Exchange Act (except such participation related to the reasonable unwinding of any such group currently existing as of the date of this Agreement) with any person who is not identified on Schedule I hereto (any such person, a “Third Party”), with respect to any securities of the Companies or take any other action that would interfere with the ability of Sellers to vote in accordance with this Agreementforegoing;
(g) make any disclosure, communication, announcement contest the validity or statement regarding any intent, purpose, plan or proposal with respect to the FSC Board of Directors (the “Company Board”), the Company investment advisor or the terms and conditions enforceability of the Company’s investment advisory agreement, agreements contained in Section 5.1 or this Section 5.2 or publicly seek a release of the FSFR Board of Directors restrictions contained in Section 5.1 or this Section 5.2 (the “FSFR Board”whether by legal action or otherwise), the FSFR investment advisor or the terms and conditions of FSFR’s investment advisory agreement, the Company, FSFR, or the management, policies or affairs of either the Company or FSFR, or with respect to this Agreement, that is inconsistent with the provisions of this Agreement;
(h) effect enter into any agreement, arrangement or seek to effect, offer or propose to effect, cause or participate in, or in any way assist or facilitate any other person to effect or seek, offer or propose to effect or participate in, any tender or exchange offer, merger, consolidation, acquisition, scheme, arrangement, business combination, recapitalization, reorganization, sale or acquisition of assets, liquidation, dissolution, extraordinary dividend, significant share repurchase or other extraordinary transaction involving the Company, FSFR or either of their investment advisors, or any of their subsidiaries or joint ventures or any of their respective securities (each, an “Extraordinary Transaction”), or make any statement or disclosure regarding any intent, purpose, plan or proposal understanding with respect to any Extraordinary Transaction or this Agreement that is inconsistent with the provisions of this Agreement, including any intent, purpose, plan or proposal that is conditioned on, or would require waiver, amendment, nullification or invalidation of, any provision of this Agreement or take any action that could require the Company or FSFR to make any public disclosure relating to any such intent, purpose, plan, proposal or condition;
(i) (i) call or seek to call or request the calling of any meeting of stockholders at either the Company or FSFR, including by written consent, (ii) seek, alone or in concert with others, representation on, or nominate any candidate to, the Company Board or the FSFR Board, (iii) seek the removal of any member of the Company Board or the FSFR Board, (iv) seek, alone or in concert with others, or support any Third Party in seeking, to replace the investment advisor of the Company or the investment advisor of FSFR, (v) solicit consents from the Company or FSFR stockholders or otherwise act or seek to act by written consent, (vi) conduct a referendum of the Company or FSFR stockholders or (vii) make a request for any stockholders list or any other books and records in Sellers’ capacity as a Company or FSFR stockholder;
(j) purchase or cause to be purchased or otherwise acquire or agree to acquire beneficial ownership of any securities issued by the Company or FSFR, or any securities convertible into or exchangeable for securities issued by the Company or FSFR;
(k) sell, offer to sell, give, pledge, grant a security interest in, encumber, assign, grant any option for the sale of or otherwise transfer or dispose of (each, a “Transfer”) any securities issued by the Company and/or any securities convertible into or exchangeable for securities issued by the Company, unless any Buyer fails to timely perform each of its obligations under Section 1.2(b), Section 1.3(c) and/or Section 1.3(d)(i) of this Agreement;
(l) institute, solicit or join, as a party, or knowingly assist any other person in instituting, soliciting or joining, any litigation, arbitration or other proceeding against the Company or FSFR or any of their current or former directors or officers (including derivative actions), other than (i) litigation to enforce the provisions of this Agreement and (ii) counterclaims with respect to any proceeding initiated by, or on behalf of, a party to this Agreement or FSFR against Sellers;
(m) enter into or engage in any short sale or purchase, sale or grant of any option, warrant, derivative, convertible security, stock appreciation right or other similar right (including, without limitation, any put or call option or swap transaction) with respect to or having any measurement relating to any securities of the Companies;
(n) enter into any negotiations, arrangements, understanding or agreements (whether written or oral) with, or advise, finance, assist, seek to knowingly persuade or encourage, any Third Party to take any action or make any statement in connection with any of the foregoing, or make any investment in or enter into any arrangement with any other person that engages, or offers or proposes to engage, in any of the foregoing, or otherwise take or cause any action or make any statement inconsistent with any of the foregoing; or
(oi) take knowingly encourage or knowingly facilitate others to do any action challenging of the validity or enforceability of this Agreement, or make or in any way advance any request or proposal that the Company, FSFR, the Company Board or the FSFR Board amend, modify or waive any provision of this Agreementforegoing.
Appears in 2 contracts
Samples: Stockholders’ Agreement (INC Research Holdings, Inc.), Stockholders' Agreement (INC Research Holdings, Inc.)
Standstill. Effective from (a) The Purchaser agrees that, during the date of this Agreement and continuing until the later of the certification of votes for the Company 2017 Annual Meeting of Stockholders or the certification of votes for the FSFR (as defined below) 2017 Annual Meeting of Stockholders (the “Standstill Period”), except to the extent expressly permitted by the terms of this Agreement, none of the Sellers shallit shall not, and Sellers shall cause their respective controlled each of its Affiliates not to, directly or indirectly, in any manner, alone or in concert with others:others take any of the following actions without the prior consent of the Company (acting through a resolution of the Company’s directors not including any SL Directors):
(ai) solicitmake, or knowingly encourage engage in, or in any way engage in any solicitation ofparticipate in, directly or indirectly, any “solicitation” of proxies (as such terms are used in the proxy rules of the SEC but without regard to the exclusion set forth in Rule 14a-1(l)(2)(iv)) or consents to vote, or seek to advise, encourage or influence any person with respect to the voting of any securities of the Company for the election of individuals to the Board of Directors or to approve any proposals submitted to a vote of the stockholders of the Company that have not been authorized and approved, or recommended for approval, by the Board of Directors, or become a “participant” in a any contested “solicitation,” directly or indirectly, (as such terms are defined in Regulation 14A or used under the Securities Exchange Act) for the election of directors with respect to the Company, other than a “solicitation” or acting as a “participant” in support of all of the nominees of the Board of the Directors at any stockholder meeting, or make or be the proponent of any stockholder proposal (pursuant to Rule 14a-8 under the Exchange Act of 1934or otherwise);
(ii) form, as amended (the “Exchange Act”) of proxies join, encourage, influence, advise or consents (including, without limitation, in any solicitation of consents that seeks to call a special meeting of stockholders or by encouraging or participating way participate in any “withholdgroup” or similar campaign), (as such term is defined in each case, Section 13(d)(3) of the Exchange Act) with any persons who are not its Affiliates with respect to any securities of the Company or Fifth Street Senior Floating Rate Corp. (“FSFR”) otherwise in any manner agree, attempt, seek or propose to deposit any securities of the Company or any securities convertible or exchangeable into or exercisable for any such securities (collectively, “securities of the Companies”);
(b) make any proposal for consideration by stockholders at any annual or special meeting of the stockholders of the Company or FSFR, whether pursuant to Rule 14a-8 under the Exchange Act, either such company’s constituent documents or otherwise;
(c) knowingly advise, encourage, support, instruct or influence any person with respect to any of the matters covered by this Section 3.1 or with respect to the voting or disposition of any securities of the Companies at any annual or special meeting of stockholders of the Company or FSFR, except in accordance with Section 3.4, or seek to do so;
(d) agree, attempt, seek or propose to deposit any securities of the Companies in any voting trust or similar arrangement, or subject any securities of the Companies Company to any arrangement or agreement with respect to the voting thereof, except in accordance with Section 3.4as expressly permitted by this Agreement;
(eiii) knowingly seek acquire, offer or encourage any person propose to submit nominations in furtherance of a “contested solicitation” or take other action for the election or removal of directors with respect to the Company or FSFR, including any action that is intended toacquire, or is reasonably likely agree to result inacquire, directly or indirectly, whether by purchase, tender or exchange offer, through the replacement acquisition of the investment advisor control of the Company or FSFRanother person, or a modification to the terms or conditions of either the Company’s or FSFR’s investment advisory agreement;
(f) form, join in or in any way participate in by joining a partnership, limited partnership, syndicate or other group, including, without limitation, group (including any group of persons that would be treated as a group as defined single “person” under Section 13(d) of the Exchange Act Act), through swap or hedging transactions or otherwise, any securities of the Company or any rights decoupled from the underlying securities that would result in the Purchaser (except together with its Affiliates), having Beneficial Ownership of more than 19.9% in the aggregate of the shares of the Company Common Stock outstanding at such participation related time (assuming all the Notes are converted and Warrants are exercised), excluding any issuance by the Company of shares of Company Common Stock or options, warrants or other rights to acquire Company Common Stock (or the exercise thereof) to any SL Director as compensation for their membership on the Board of Directors; provided that nothing herein will require any Notes, Warrants or shares of Company Common Stock to be sold to the reasonable unwinding extent the Purchaser and its Affiliates, collectively, exceeds the ownership limit under this paragraph as the result of a share repurchase or any such group currently existing as other Company actions that reduces the number of outstanding shares of Company Common Stock. For purposes of this Section 4.18(a)(iii), no securities Beneficially Owned by a portfolio company of the date Purchaser or its Affiliates will be deemed to be Beneficially Owned by Purchaser or any of its Affiliates only so long as (x) such portfolio company is not an Affiliate of the Purchaser for purposes of this Agreement, (y) neither the Purchaser nor any of its Affiliates has encouraged, instructed, directed, supported, assisted or advised, or coordinated with, such portfolio company with respect to the acquisition, voting or disposition of securities of the Company by the portfolio company and (z) neither the Purchaser or any of its Affiliates is a member of a group (as such term is defined in Section 13(d)(3) of the Exchange Act) with any person who is not identified on Schedule I hereto (any such person, a “Third Party”), that portfolio company with respect to any securities of the Companies or take any other action that would interfere with the ability of Sellers to vote in accordance with this AgreementCompany;
(g) make any disclosure, communication, announcement or statement regarding any intent, purpose, plan or proposal with respect to the FSC Board of Directors (the “Company Board”), the Company investment advisor or the terms and conditions of the Company’s investment advisory agreement, the FSFR Board of Directors (the “FSFR Board”), the FSFR investment advisor or the terms and conditions of FSFR’s investment advisory agreement, the Company, FSFR, or the management, policies or affairs of either the Company or FSFR, or with respect to this Agreement, that is inconsistent with the provisions of this Agreement;
(hiv) effect or seek to effect, offer or propose to effect, cause or participate in, or in any way assist or facilitate any other person to effect or seek, offer or propose to effect or participate in, any tender or exchange offer, merger, consolidation, acquisition, scheme, scheme of arrangement, business combination, recapitalization, reorganization, sale or acquisition of all or substantially all assets, liquidation, dissolution, extraordinary dividend, significant share repurchase dissolution or other extraordinary transaction involving the Company, FSFR or either of their investment advisors, Company or any of their subsidiaries its Subsidiaries or joint ventures or any of their respective securities (each, an “Extraordinary Transaction”), or make any public statement with respect to an Extraordinary Transaction; provided, however, that this clause shall not preclude the tender by the Purchaser or disclosure any of its Affiliates of any securities of the Company into any Third Party Tender/Exchange Offer (and any related conversion of Notes or exercise of Warrants to the extent required to effect such tender) or the vote by the Purchaser or any of its Affiliates of any voting securities of the Company with respect to any Extraordinary Transaction in accordance with the recommendation of the Board of Directors;
(v) (A) call or seek to call any meeting of stockholders of the Company, including by written consent, (B) seek representation on the Board of Directors, except as expressly set forth herein, (C) seek the removal of any member of the Board of Directors (other than a Purchaser Designee in accordance with Section 4.07), (D) solicit consents from stockholders or otherwise act or seek to act by written consent with respect to the Company, (E) conduct a referendum of stockholders of the Company or (F) make a request for any stockholder list or other Company books and records, whether pursuant to Section 220 of the DGCL or otherwise;
(vi) take any action in support of or make any proposal or request that constitutes: (A) controlling or changing the Board of Directors or management of the Company, including any plans or proposals to change the number or term of directors or to fill any vacancies on the Board of Directors, (B) any material change in the capitalization or dividend policy of the Company, or (C) any other material change in the Company’s management, business or corporate structure (except pursuant to any action or transaction permitted by Section 4.18(a)(iv));
(vii) (A) seeking to have the Company waive or make amendments or modifications to the Company’s certificate of incorporation or bylaws, or other actions that may impede or facilitate the acquisition of control of the Company by any person, (B) causing a class of securities of the Company to be delisted from, or to cease to be authorized to be quoted on, any securities exchange; or (C) causing a class of equity securities of the Company to become eligible for termination of registration pursuant to Section 12(g)(4) of the Exchange Act;
(viii) [reserved];
(ix) make any public disclosure, announcement or statement regarding any intent, purpose, plan or proposal with respect to the Board of Directors, the Company, its management, policies or affairs, any Extraordinary Transaction of its securities or assets or this Agreement that is inconsistent with the provisions of this Agreement, including any intent, purpose, plan or proposal that is conditioned on, or would require waiver, amendment, nullification or invalidation of, any provision of this Agreement or take any action that could require the Company or FSFR to make any public disclosure relating to any such intent, purpose, plan, proposal or condition;; or
(ix) (i) call enter into any discussions, negotiations, agreements or seek to call or request the calling of any meeting of stockholders at either the Company or FSFR, including by written consent, (ii) seek, alone or in concert understandings with others, representation on, or nominate any candidate to, the Company Board or the FSFR Board, (iii) seek the removal of any member of the Company Board or the FSFR Board, (iv) seek, alone or in concert with others, or support any Third Party in seeking, to replace the investment advisor of the Company or the investment advisor of FSFR, (v) solicit consents from the Company or FSFR stockholders or otherwise act or seek to act by written consent, (vi) conduct a referendum of the Company or FSFR stockholders or (vii) make a request for any stockholders list or any other books and records in Sellers’ capacity as a Company or FSFR stockholder;
(j) purchase or cause to be purchased or otherwise acquire or agree to acquire beneficial ownership of any securities issued by the Company or FSFR, or any securities convertible into or exchangeable for securities issued by the Company or FSFR;
(k) sell, offer to sell, give, pledge, grant a security interest in, encumber, assign, grant any option for the sale of or otherwise transfer or dispose of (each, a “Transfer”) any securities issued by the Company and/or any securities convertible into or exchangeable for securities issued by the Company, unless any Buyer fails to timely perform each of its obligations under Section 1.2(b), Section 1.3(c) and/or Section 1.3(d)(i) of this Agreement;
(l) institute, solicit or join, as a party, or knowingly assist any other person in instituting, soliciting or joining, any litigation, arbitration or other proceeding against the Company or FSFR or any of their current or former directors or officers (including derivative actions), other than (i) litigation to enforce the provisions of this Agreement and (ii) counterclaims with respect to any proceeding initiated by, or on behalf of, a party to this Agreement or FSFR against Sellers;
(m) enter into or engage in any short sale or purchase, sale or grant of any option, warrant, derivative, convertible security, stock appreciation right or other similar right (including, without limitation, any put or call option or swap transaction) with respect to or having any measurement relating to any securities of the Companies;
(n) enter into any negotiations, arrangements, understanding or agreements (whether written or oral) withforegoing, or advise, finance, assist, knowingly encourage or seek to knowingly persuade or encourage, any Third Party to take any action or make any statement in connection with respect to any of the foregoing.
(b) The foregoing provisions of Section 4.18(a) shall not be deemed to prohibit (i) any action that may be taken by any Purchaser Designee acting solely as a director of the Company consistent with his fiduciary duties as a director of the Company if such action does not include or result in any public announcement or disclosure by such Purchaser Designee, the Purchaser or make any investment of its Affiliates, (ii) the Purchaser or any of its Affiliates or their respective directors, executive officers, partners, employees, managing members, advisors or agents (acting in such capacity) from communicating on a confidential basis with the Company’s directors, officers or enter advisors or (iii) the Purchaser or any of its Affiliates from (A) making a confidential proposal to the Company or the Board of Directors for a negotiated transaction with the Company involving a Change in Control, (B) pursuing and entering into any arrangement such transaction with the Company and (C) taking any other person that engages, or offers or proposes to engage, actions in any furtherance of the foregoing, or otherwise take or cause any action or make any statement inconsistent with any of the foregoing; or.
(oc) take any action challenging Notwithstanding the validity foregoing provisions of Section 4.18(a) or enforceability anything in this Agreement to the contrary, the Purchaser and its Affiliates shall not be restricted from (i) acquiring securities with the prior written consent of this Agreement, or make or in any way advance any request or proposal that the Company, FSFR(ii) acquiring securities pursuant to Section 4.16, (iii) participating in rights or securities offerings conducted by the Company, (iv) receiving stock dividends, PIK interest or similar distributions and payments made by the Company, (v) tendering Company Common Stock as permitted by Section 4.02 or in a Third Party Tender/Exchange Offer after the Restricted Period (or effecting any Permitted Loan or Permitted Debt Financing Transaction under Section 4.02), (vi) disposing of Company Common Stock by operation of a statutory amalgamation, statutory arrangement or other statutory procedure involving the Company Board or (vii) any conversion of the FSFR Board amendNotes, modify exercise of Warrants or waive any provision other securities acquired not in contravention of this AgreementSection 4.18.
Appears in 2 contracts
Samples: Investment Agreement (Zuora Inc), Investment Agreement (Zuora Inc)
Standstill. Effective from During the date of this Agreement and continuing until the later of the certification of votes for the Company 2017 Annual Meeting of Stockholders or the certification of votes for the FSFR (as defined below) 2017 Annual Meeting of Stockholders (the “Standstill Period”), except to the extent expressly permitted unless approved in advance in writing by the terms Board of this AgreementDirectors, none each of the Sellers shallXxxx Park and Xxxxxxxxx shall not, and Sellers shall cause their respective controlled each of its Affiliates not toto not, directly or indirectly, in any manner, alone or in concert with others:
(a) solicitexcept as set forth in Section 7, acquire (or propose or agree to acquire), of record or beneficially, by purchase or otherwise, any loans, debt securities, equity securities or assets of the Company or any of its subsidiaries, or knowingly encourage rights or options to acquire interests in or any way engage derivative securities with respect to any of the Company’s loans, debt securities, equity securities or assets; provided, however, that in addition to any solicitation ofshares purchased pursuant to Section 7, the Company agrees that Xxxxxxxxx may purchase up to an aggregate of Two Hundred Fifty Thousand (250,000) shares of Common Stock at a purchase price per share of no less than $2.00 from current or former Principals of Xxxx Park during the Agreement Period without violating this Section 9(a);
(b) make any proxies statement or consents proposal (whether public or become a “participant” private) to any of the Company’s stockholders (other than in a confidential manner to any of the Company’s or its subsidiaries’ officers, directors or managers who are also stockholders of the Company) regarding, or make any public announcement, proposal or offer (including any “solicitation,” directly or indirectly, of “proxies” as such terms are defined or used in Regulation 14A under of the Securities Exchange Act of 1934, as amended (the “Exchange Act”)) of proxies with respect to, or consents otherwise solicit, seek or offer to effect (including, without limitationfor the avoidance of doubt, indirectly by means of communication with the press or media): (i) any solicitation of consents that seeks to call a special meeting of stockholders or by encouraging or participating in any “withhold” business combination, merger, tender offer, exchange offer or similar campaign), in each case, with respect to securities of transaction involving the Company or Fifth Street Senior Floating Rate Corp. any of its subsidiaries, (“FSFR”ii) any restructuring, recapitalization, liquidation or any securities convertible or exchangeable into or exercisable for any such securities (collectively, “securities of the Companies”);
(b) make any proposal for consideration by stockholders at any annual or special meeting of the stockholders of similar transaction involving the Company or FSFRany of its subsidiaries, whether pursuant (iii) any change to Rule 14a-8 under the Exchange ActArticles of Incorporation, either such companythe Bylaws or any articles of incorporation, bylaws or other organizational or governing documents of any of the Company’s constituent documents subsidiaries, (iv) any change to the Company’s or otherwiseits subsidiaries’ business activities or corporate structure, (v) any acquisition of any of the Company’s loans, debt securities, equity securities or assets, or rights or options to acquire interests in any of the Company’s loans, debt securities, equity securities or assets, (vi) except as set forth in Section 8, any representation on the Board of Directors or otherwise seek to control or influence the management, Board of Directors or policies of the Company, (vii) any waiver, termination or amendment to the provisions of this Agreement, or (viii) any proposal, arrangement or other statement that is inconsistent with the terms of this Agreement, including this Section 9;
(c) knowingly adviseinstigate, encourageencourage or assist any third party (including, supportbut not limited to, instruct forming a “group” with any such third party) to do or influence enter into any person discussions or agreements with any third party with respect to any of the matters covered by actions set forth in this Section 3.1 or with respect to the voting or disposition of any securities of the Companies at any annual or special meeting of stockholders of the Company or FSFR, except in accordance with Section 3.4, or seek to do so;9; or
(d) agree, attempt, seek or propose to deposit any securities of the Companies in any voting trust or similar arrangement, or subject any securities of the Companies to any arrangement or agreement with respect to the voting thereof, except in accordance with Section 3.4;
(e) knowingly seek or encourage any person to submit nominations in furtherance of a “contested solicitation” or take other action for the election or removal of directors with respect to the Company or FSFR, including any action that is intended to, or is reasonably likely to result in, the replacement of the investment advisor of the Company or FSFR, or a modification to the terms or conditions of either the Company’s or FSFR’s investment advisory agreement;
(f) form, join in or in any way participate in a partnership, limited partnership, syndicate or other group, including, without limitation, a group as defined under Section 13(d) of the Exchange Act (except such participation related to the reasonable unwinding of any such group currently existing as of the date of this Agreement) with any person who is not identified on Schedule I hereto (any such person, a “Third Party”), with respect to any securities of the Companies or take any other action that would interfere with the ability of Sellers to vote in accordance with this Agreement;
(g) make any disclosure, communication, announcement or statement regarding any intent, purpose, plan or proposal with respect to the FSC Board of Directors (the “Company Board”), the Company investment advisor or the terms and conditions of the Company’s investment advisory agreement, the FSFR Board of Directors (the “FSFR Board”), the FSFR investment advisor or the terms and conditions of FSFR’s investment advisory agreement, the Company, FSFR, or the management, policies or affairs of either the Company or FSFR, or with respect to this Agreement, that is inconsistent with the provisions of this Agreement;
(h) effect or seek to effect, offer or propose to effect, cause or participate in, or in any way assist or facilitate any other person to effect or seek, offer or propose to effect or participate in, any tender or exchange offer, merger, consolidation, acquisition, scheme, arrangement, business combination, recapitalization, reorganization, sale or acquisition of assets, liquidation, dissolution, extraordinary dividend, significant share repurchase or other extraordinary transaction involving the Company, FSFR or either of their investment advisors, or any of their subsidiaries or joint ventures or any of their respective securities (each, an “Extraordinary Transaction”), or make any statement or disclosure regarding any intent, purpose, plan or proposal with respect to any Extraordinary Transaction or this Agreement that is inconsistent with the provisions of this Agreement, including any intent, purpose, plan or proposal that is conditioned on, or would require waiver, amendment, nullification or invalidation of, any provision of this Agreement or take any action that could which would reasonably be expected to require the Company or FSFR any of its affiliates to make any a public disclosure relating to any such intent, purpose, plan, proposal or condition;
(i) (i) call or seek to call or request the calling of any meeting of stockholders at either the Company or FSFR, including by written consent, (ii) seek, alone or in concert with others, representation on, or nominate any candidate to, the Company Board or the FSFR Board, (iii) seek the removal of any member of the Company Board or the FSFR Board, (iv) seek, alone or in concert with others, or support any Third Party in seeking, to replace the investment advisor of the Company or the investment advisor of FSFR, (v) solicit consents from the Company or FSFR stockholders or otherwise act or seek to act by written consent, (vi) conduct a referendum of the Company or FSFR stockholders or (vii) make a request for any stockholders list or any other books and records in Sellers’ capacity as a Company or FSFR stockholder;
(j) purchase or cause to be purchased or otherwise acquire or agree to acquire beneficial ownership of any securities issued by the Company or FSFR, or any securities convertible into or exchangeable for securities issued by the Company or FSFR;
(k) sell, offer to sell, give, pledge, grant a security interest in, encumber, assign, grant any option for the sale of or otherwise transfer or dispose of (each, a “Transfer”) any securities issued by the Company and/or any securities convertible into or exchangeable for securities issued by the Company, unless any Buyer fails to timely perform each of its obligations under Section 1.2(b), Section 1.3(c) and/or Section 1.3(d)(i) of this Agreement;
(l) institute, solicit or join, as a party, or knowingly assist any other person in instituting, soliciting or joining, any litigation, arbitration or other proceeding against the Company or FSFR or any of their current or former directors or officers (including derivative actions), other than (i) litigation to enforce the provisions of this Agreement and (ii) counterclaims with respect to any proceeding initiated by, or on behalf of, a party to this Agreement or FSFR against Sellers;
(m) enter into or engage in any short sale or purchase, sale or grant of any option, warrant, derivative, convertible security, stock appreciation right or other similar right (including, without limitation, any put or call option or swap transaction) with respect to or having any measurement relating to any securities of the Companies;
(n) enter into any negotiations, arrangements, understanding or agreements (whether written or oral) with, or advise, finance, assist, seek to knowingly persuade or encourage, any Third Party to take any action or make any statement in connection with announcement regarding any of the foregoing, actions or make any investment matters set forth in or enter into any arrangement with any other person that engages, or offers or proposes to engage, in any of the foregoing, or otherwise take or cause any action or make any statement inconsistent with any of the foregoing; or
(o) take any action challenging the validity or enforceability of this Agreement, or make or in any way advance any request or proposal that the Company, FSFR, the Company Board or the FSFR Board amend, modify or waive any provision of this AgreementSection 9.
Appears in 2 contracts
Samples: Termination and Release Agreement (Ricciardi Christopher), Termination and Release Agreement (Institutional Financial Markets, Inc.)
Standstill. Effective from the date of this Agreement and continuing (a) The Purchaser agrees that until the later two-year anniversary of the certification of votes for the Company 2017 Annual Meeting of Stockholders or the certification of votes for the FSFR (as defined below) 2017 Annual Meeting of Stockholders Closing Date (the “Standstill PeriodTermination”), except without the prior written approval of the Board, the Purchaser will not, directly or indirectly, and will cause its Affiliates not to, make any short sale of, or enter into any hedging or similar transaction with the same economic effect as a short sale of, any Shares, or otherwise establish or increase, directly or indirectly, a put equivalent position, as defined in Rule 16a-1(h) under the Exchange Act, with respect to any of the extent expressly permitted Shares (it being agreed that any broad-based index options, broad-based index future, broad-based publicly traded market baskets and trading in (or with respect to) securities of other industry participants shall not be restricted).
(b) Except as may be provided by the terms of this Agreement, none prior written approval of the Sellers shallBoard, the Purchaser agrees that until the Standstill Termination the Purchaser will not, and Sellers shall will cause their respective controlled its Affiliates not to, directly or indirectly, in any manner, alone or in concert with others:
(ai) solicitacquire, offer or knowingly encourage seek to acquire, agree to acquire or make a public proposal to acquire, by purchase or otherwise, any equity securities of the Company, any securities convertible into or exchangeable for any such equity securities, any options or other derivative securities or contracts or instruments in any way engage related to the price of Shares (it being agreed that any broad-based index options, broad-based index future, broad-based publicly traded market baskets and trading in any solicitation of(or with respect to) securities of other industry participants shall not be restricted); provided, any proxies or consents or become a “participant” in a “solicitation,” directly or indirectlythat following the Closing, subject to Section 7.2 of the Company’s Articles of Restatement, as such terms are defined in Regulation 14A under amended, the Securities Exchange Act of 1934, Purchaser and its Affiliates may acquire additional Shares so long as amended (the “Exchange Act”) of proxies or consents (including, without limitation, any solicitation of consents that seeks to call a special meeting of stockholders or by encouraging or participating in any “withhold” or similar campaign)Purchaser and its Affiliates beneficially own, in each casethe aggregate, with respect to securities no more than 9.8% of the Company or Fifth Street Senior Floating Rate Corp. (“FSFR”) or any securities convertible or exchangeable into or exercisable for any such securities (collectively, “securities of the Companies”)Company’s then-outstanding Shares;
(bii) make any proposal for consideration by stockholders at any annual or special meeting of the stockholders of the Company or FSFR, whether pursuant to Rule 14a-8 under the Exchange Act, either such company’s constituent documents or otherwise;
(c) knowingly advise, encourage, support, instruct or influence any person with respect to any of the matters covered by this Section 3.1 or with respect to the voting or disposition of any securities of the Companies at any annual or special meeting of stockholders of the Company or FSFR, except in accordance with Section 3.4, or seek to do so;
(d) agree, attempt, seek or propose to deposit any securities of the Companies in any voting trust or similar arrangement, or subject any securities of the Companies to any arrangement or agreement with respect to the voting thereof, except in accordance with Section 3.4;
(e) knowingly seek or encourage any person to submit nominations in furtherance of a “contested solicitation” or take other action for the election or removal of directors with respect to the Company or FSFR, including any action that is intended to, or is reasonably likely to result in, the replacement of the investment advisor of the Company or FSFR, or a modification to the terms or conditions of either the Company’s or FSFR’s investment advisory agreement;
(f) form, join in or in any way participate in a partnershipany “solicitation” of “proxies” (whether or not relating to the election or removal of directors), limited partnership, syndicate or other group, including, without limitation, a group as defined under Section 13(d) such terms are used in the rules of the Exchange Act (except such participation related SEC, to the reasonable unwinding of vote, or knowingly seek to advise or influence any such group currently existing as of the date of this Agreement) with any person who is not identified on Schedule I hereto (any such person, a “Third Party”), Person with respect to voting of, any voting securities of the Companies Company or take any other action that would interfere with the ability of Sellers call or seek to vote in accordance with this Agreement;
(g) make any disclosure, communication, announcement or statement regarding any intent, purpose, plan or proposal with respect to the FSC Board of Directors (the “Company Board”), the Company investment advisor or the terms and conditions call a meeting of the Company’s investment advisory agreement, the FSFR Board of Directors (the “FSFR Board”), the FSFR investment advisor stockholders or the terms and conditions of FSFR’s investment advisory agreement, initiate any stockholder proposal or action by the Company, FSFR’s stockholders, or seek election to or to place a representative on the management, policies Board or affairs seek the removal of either any director from the Company or FSFR, or with respect to this Agreement, that is inconsistent with the provisions of this AgreementBoard;
(hiii) effect or seek to effectmake any public announcement with respect to, offer or propose to effectany merger or business combination, cause or participate in, or in any way assist or facilitate any other person to effect or seek, offer or propose to effect or participate in, any tender or exchange offer, merger, consolidation, acquisition, scheme, arrangement, business combination, recapitalization, reorganization, sale reorganization or acquisition purchase of a material portion of the assets, liquidationproperties or securities of the Company or any of its Subsidiaries, dissolution, extraordinary dividend, significant share repurchase or any other extraordinary transaction involving the Company, FSFR or either of their investment advisors, Company or any of their subsidiaries its Subsidiaries, or joint ventures enter into any arrangements, understandings or agreements with any other Person regarding any of their respective securities the foregoing (each, an “Extraordinary Transaction”other than as permitted pursuant to Section 5.06), or make any statement or disclosure regarding any intent, purpose, plan or proposal with respect to any Extraordinary Transaction or this Agreement that is inconsistent with the provisions of this Agreement, including any intent, purpose, plan or proposal that is conditioned on, or would require waiver, amendment, nullification or invalidation of, any provision of this Agreement or take any action that could require the Company or FSFR to make any public disclosure relating to any such intent, purpose, plan, proposal or condition;
(iiv) (i) call or seek to call or request the calling of any meeting of stockholders at either the Company or FSFR, including by written consent, (ii) seekotherwise act, alone or in concert with others, representation onto seek to control or influence, or nominate in any candidate tomanner, the Company management, Board or the FSFR Board, (iii) seek the removal of any member of the Company Board or the FSFR Board, (iv) seek, alone or in concert with others, or support any Third Party in seeking, to replace the investment advisor policies of the Company or the investment advisor any of FSFR, its Subsidiaries;
(v) solicit consents from except as set forth herein, publicly make any proposal to the Company or FSFR stockholders its management or otherwise act Board with respect to, or seek issue any press releases or make any statements which could reasonably be expected to act become public with respect to: (A) any change in the number or term of directors or the filling of any vacancies on the Board, (B) any material change in the capitalization or dividend policy of the Company, (C) any other change in the Company’s management, business or corporate structure, (D) any waiver, amendment or modification to the Company Charter Documents, or other actions which may impede the acquisition of control of the Company by written consentany person in any way whatsoever, (E) causing a class of securities of the Company to be delisted from, or to cease to be authorized to be quoted on, any securities exchange, or (F) causing a class of equity securities of the Company to become eligible for termination of registration pursuant to Section 12(g)(4) of the Exchange Act;
(vi) conduct a referendum make any request for stock list materials or other books and records of the Company or FSFR stockholders or under Maryland law;
(vii) make a request for any stockholders list public proposal or statement of inquiry or publicly disclose any other books and records in Sellers’ capacity as a Company intention, plan or FSFR stockholderarrangement consistent with the foregoing;
(jviii) purchase advise, assist, knowingly encourage or cause direct any Person to be purchased or otherwise acquire or agree to acquire beneficial ownership of any securities issued by the Company or FSFRdo, or to advise, assist, encourage or direct any securities convertible into or exchangeable for securities issued by other Person to do, any of the Company or FSFRforegoing;
(kix) selltake any action that would, offer to sellin effect, give, pledge, grant a security interest in, encumber, assign, grant any option for the sale of or otherwise transfer or dispose of (each, a “Transfer”) any securities issued by require the Company and/or any securities convertible into or exchangeable for securities issued by the Company, unless any Buyer fails to timely perform each of its obligations under Section 1.2(b), Section 1.3(c) and/or Section 1.3(d)(i) of this Agreement;
(l) institute, solicit or join, as make a party, or knowingly assist any other person in instituting, soliciting or joining, any litigation, arbitration or other proceeding against the Company or FSFR or any of their current or former directors or officers (including derivative actions), other than (i) litigation to enforce the provisions of this Agreement and (ii) counterclaims public announcement with respect to any proceeding initiated by, or on behalf of, a party to this Agreement or FSFR against Sellersof the foregoing;
(mx) enter into any arrangements or engage in understandings with any short sale or purchase, sale or grant of any option, warrant, derivative, convertible security, stock appreciation right or other similar right third party (including, without limitation, any put or call option or swap transactionsecurity holders of the Company) with respect to or having any measurement relating to any securities of the Companies;
(n) enter into any negotiations, arrangements, understanding or agreements (whether written or oral) with, or advise, finance, assist, seek to knowingly persuade or encourage, any Third Party to take any action or make any statement in connection with any of the foregoing, including, without limitation, forming, joining or make in any investment way participating in or enter into any arrangement a “group” (as such term is used in Sections 13(d) and 14(d) of the Exchange Act) with any other person that engages, or offers or proposes third party with respect to engage, in any of the foregoing, or otherwise take or cause any action or make any statement inconsistent with any of the foregoing; or
(oxi) take any action challenging the validity or enforceability of this Agreement, or make or in any way advance any request or proposal that the Company, FSFR, the Company Board or the FSFR Board amendany of its Representatives, modify directly or indirectly, to amend or waive any provision of this AgreementSection 5.02, provided that this clause shall not prohibit the Purchaser from making a confidential request to the Company seeking an amendment or waiver of the provisions of this Section 5.02, which the Company may accept or reject in its sole discretion, so long as any such request is made in a manner that does not require public disclosure thereof by the Company and, provided further, that notwithstanding anything to the contrary in this Section 5.02, the Purchaser and its Affiliates may at any time communicate privately with the Company’s directors, officers or advisors or submit to the Board one or more confidential proposals or offers for a transaction (including a transaction that, if consummated, would result in a change of control of the Company), so long as, in each case, such communications and submissions are not intended to, and would not reasonably be expected to, require any public disclosure by the Company of such communications or submissions, as applicable.
(c) The obligations under this Section 5.02 shall automatically terminate upon a Change of Control Date.
Appears in 2 contracts
Samples: Investment Agreement (Amherst Single Family Residential Partners VI, LP), Investment Agreement (Front Yard Residential Corp)
Standstill. Effective from (a) Each Purchaser covenants to and agrees with the Company that, without the Company’s prior written consent, neither such Purchaser nor any of its Affiliates will, directly or indirectly until the date of this Agreement and continuing until that is twelve (12) months after the later of the certification of votes for the Company 2017 Annual Meeting of Stockholders or the certification of votes for the FSFR (as defined below) 2017 Annual Meeting of Stockholders Closing Date (the “Standstill Period”)):
(i) in any way acquire, except offer or propose to acquire or agree to acquire legal title to or Beneficial Ownership of any Company Securities;
(ii) make any public announcement with respect to, or submit to the extent expressly permitted Company or any of its directors, officers, representatives, trustees, employees, attorneys, advisors, agents or Affiliates, any proposal for the acquisition of any Company Securities or with respect to any merger, consolidation, business combination, restructuring, recapitalization or purchase of any substantial portion of the assets of the Company of any of its Subsidiaries, in which such Purchaser and its Affiliates are involved, and whether or not such proposal might require the making of a public announcement by the terms Company unless the Company shall have made a prior written request to such Purchaser to submit such a proposal;
(iii) seek or propose to influence, advise, change or control the management, the board of this Agreement, none directors of the Sellers shallCompany, and Sellers shall cause their respective controlled Affiliates not to, directly governing instruments or indirectly, in policies or affairs of the Company by way of any manner, alone public communication or in concert communication with others:
(a) solicitany Person other than the Company, or knowingly encourage make, or in any way engage in any solicitation ofparticipate in, any proxies “solicitation” of “proxies” (as such terms are defined or consents used in Regulation 14A under the Exchange Act) to vote any Company Securities or become a “participant” in a any “solicitation,election contest” directly or indirectly, as such terms are defined and used in Rule 14a-11 under the Exchange Act) with respect to Company Securities; provided, however, that nothing in this clause (iii) shall prevent such Purchaser or its Affiliates from (x) voting in any manner any Company Securities over which such Purchaser or such Affiliates has Beneficial Ownership or (y) communicating privately with shareholders of the Company to the extent such communication does not constitute a “solicitation” of “proxies,” as such terms are defined or used in Regulation 14A under the Securities Exchange Act and the number of 1934, as amended persons with whom such Purchaser communicates is fewer than ten (the “Exchange Act”) of proxies or consents (including, without limitation, any solicitation of consents that seeks to call a special meeting of stockholders or by encouraging or participating in any “withhold” or similar campaign10), in each case, with respect to securities of the Company or Fifth Street Senior Floating Rate Corp. (“FSFR”) or any securities convertible or exchangeable into or exercisable for any such securities (collectively, “securities of the Companies”);; or
(b) make any proposal for consideration by stockholders at any annual or special meeting of the stockholders of the Company or FSFR, whether pursuant to Rule 14a-8 under the Exchange Act, either such company’s constituent documents or otherwise;
(c) knowingly advise, encourage, support, instruct or influence any person with respect to any of the matters covered by this Section 3.1 or with respect to the voting or disposition of any securities of the Companies at any annual or special meeting of stockholders of the Company or FSFR, except in accordance with Section 3.4, or seek to do so;
(d) agree, attempt, seek or propose to deposit any securities of the Companies in any voting trust or similar arrangement, or subject any securities of the Companies to any arrangement or agreement with respect to the voting thereof, except in accordance with Section 3.4;
(e) knowingly seek or encourage any person to submit nominations in furtherance of a “contested solicitation” or take other action for the election or removal of directors with respect to the Company or FSFR, including any action that is intended to, or is reasonably likely to result in, the replacement of the investment advisor of the Company or FSFR, or a modification to the terms or conditions of either the Company’s or FSFR’s investment advisory agreement;
(f) form, join in or in any way participate in a partnership, limited partnership, syndicate or other group, including, without limitation, a group as defined under Section 13(d) of the Exchange Act (except such participation related to the reasonable unwinding of any such group currently existing as of the date of this Agreement) with any person who is not identified on Schedule I hereto (any such person, a “Third Party”), with respect to any securities of the Companies or take any other action that would interfere with the ability of Sellers to vote in accordance with this Agreement;
(g) make any disclosure, communication, announcement or statement regarding any intent, purpose, plan or proposal with respect to the FSC Board of Directors (the “Company Board”), the Company investment advisor or the terms and conditions of the Company’s investment advisory agreement, the FSFR Board of Directors (the “FSFR Board”), the FSFR investment advisor or the terms and conditions of FSFR’s investment advisory agreement, the Company, FSFR, or the management, policies or affairs of either the Company or FSFR, or with respect to this Agreement, that is inconsistent with the provisions of this Agreement;
(h) effect or seek to effect, offer or propose to effect, cause or participate in, or in any way assist or facilitate any other person to effect or seek, offer or propose to effect or participate in, any tender or exchange offer, merger, consolidation, acquisition, scheme, arrangement, business combination, recapitalization, reorganization, sale or acquisition of assets, liquidation, dissolution, extraordinary dividend, significant share repurchase or other extraordinary transaction involving the Company, FSFR or either of their investment advisors, or any of their subsidiaries or joint ventures or any of their respective securities (each, an “Extraordinary Transaction”), or make any statement or disclosure regarding any intent, purpose, plan or proposal with respect to any Extraordinary Transaction or this Agreement that is inconsistent with the provisions of this Agreement, including any intent, purpose, plan or proposal that is conditioned on, or would require waiver, amendment, nullification or invalidation of, any provision of this Agreement or take any action that could require the Company or FSFR to make any public disclosure relating to any such intent, purpose, plan, proposal or condition;
(i) (i) call or seek to call or request the calling of any meeting of stockholders at either the Company or FSFR, including by written consent, (ii) seek, alone or in concert with others, representation on, or nominate any candidate to, the Company Board or the FSFR Board, (iii) seek the removal of any member of the Company Board or the FSFR Board, (iv) seek, alone or in concert with others, or support any Third Party in seeking, to replace the investment advisor of the Company or the investment advisor of FSFR, (v) solicit consents from the Company or FSFR stockholders or otherwise act or seek to act by written consent, (vi) conduct a referendum of the Company or FSFR stockholders or (vii) make a request for any stockholders list or any other books and records in Sellers’ capacity as a Company or FSFR stockholder;
(j) purchase or cause to be purchased or otherwise acquire or agree to acquire beneficial ownership of any securities issued by the Company or FSFR, or any securities convertible into or exchangeable for securities issued by the Company or FSFR;
(k) sell, offer to sell, give, pledge, grant a security interest in, encumber, assign, grant any option for the sale of or otherwise transfer or dispose of (each, a “Transfer”) any securities issued by the Company and/or any securities convertible into or exchangeable for securities issued by the Company, unless any Buyer fails to timely perform each of its obligations under Section 1.2(b), Section 1.3(c) and/or Section 1.3(d)(i) of this Agreement;
(l) institute, solicit or join, as a party, or knowingly assist any other person in instituting, soliciting or joining, any litigation, arbitration or other proceeding against the Company or FSFR or any of their current or former directors or officers (including derivative actions), other than (i) litigation to enforce the provisions of this Agreement and (ii) counterclaims with respect to any proceeding initiated by, or on behalf of, a party to this Agreement or FSFR against Sellers;
(m) enter into or engage in any short sale or purchase, sale or grant of any option, warrant, derivative, convertible security, stock appreciation right or other similar right (including, without limitation, any put or call option or swap transaction) with respect to or having any measurement relating to any securities of the Companies;
(n) enter into any negotiations, arrangements, understanding or agreements (whether written or oral) with, or advise, finance, assist, seek to knowingly persuade or encourage, any Third Party to take any action or make any statement in connection with any of the foregoing, or make any investment in or enter into any arrangement with any other person that engages, or offers or proposes to engage, in any of the foregoing, or otherwise take or cause any action or make any statement inconsistent with any of the foregoing; or
(o) take any action challenging the validity or enforceability of this Agreement, or make or in any way advance any request or proposal that the Company, FSFR, the Company Board or the FSFR Board amend, modify amend or waive any provision of this Section 5.12(a). Notwithstanding the above provisions under this Section 5.12, with respect to each case under items (i) — (iii) above, if at any time the Company issues any Company Securities (except for any Company Securities issued or granted pursuant to the employee share incentive plan of the Company existing as of the date hereof (but such exception shall not apply to any future amendments which may be made to such plan)) or sells any treasury ADSs, each Purchaser shall have the right to acquire such number of Company Securities in order to maintain the same percentage ownership it owns in the Company prior to such issuance or sale of such Company Securities or treasury ADSs (as applicable) (on a fully diluted and as converted basis as defined in the Exhibit C).
(b) For purposes of this Agreement, a Person shall be deemed to have “Beneficial Ownership” of any securities in respect of which such Person or any such Person’s Affiliates is considered to be a “Beneficial Owner” under Rule 13d-3 under the Exchange Act as in effect on the date hereof.
Appears in 2 contracts
Samples: Subscription Agreement (Bitauto Holdings LTD), Subscription Agreement (JD.com, Inc.)
Standstill. Effective 3.1 For a period of three (3) years from the date of this Agreement and continuing until the later of the certification of votes for the Company 2017 Annual Meeting of Stockholders or the certification of votes for the FSFR (as defined below) 2017 Annual Meeting of Stockholders Closing Date (the “Standstill Period”), except to the extent expressly permitted by the terms of this Agreement, none of the Sellers shallInvestor will not, and Sellers shall will cause their respective controlled its Affiliates not to, without the prior written approval of the Company or as otherwise provided in this Section 3, directly or indirectly, in any manner, alone (x) purchase or in concert with others:
(a) solicitacquire Qualified Securities, or knowingly encourage (y) commence a Public Offer if, in either case, the consummation of such purchase or acquisition or Public Offer would result in Investor and its Affiliates in the aggregate Beneficially Owning (assuming the exercise, exchange or conversion of all securities exercisable or exchangeable for or convertible into or otherwise giving the holder thereof any way engage rights in any solicitation ofrespect of Company Voting Securities held by them), any proxies or consents or become a “participant” in a “solicitation,” directly or indirectly, as such terms are defined greater than 18% of the issued and outstanding Company Voting Securities (assuming the exercise, exchange or conversion of all securities exercisable or exchangeable for or convertible into or otherwise giving the holder thereof any rights in Regulation 14A under the respect of Company Voting Securities Exchange Act of 1934, as amended held by Investor and its Affiliates) (the “Exchange Act”Ownership Limit); provided that no purchase or acquisition of Qualified Securities shall be deemed to occur solely due to (a) an exchange of Ordinary Shares for ADS or ADS for Ordinary Shares, a stock split, reverse stock split, reclassification, reorganization or other transaction by the Company affecting the Company Voting Securities generally, (b) a stock dividend or other pro rata distribution by the Company to holders of the outstanding Company Voting Securities or (c) any other change in the outstanding number of Company Voting Securities; and provided further that nothing in clause (y) above shall prevent Investor or any Affiliate of Investor from communicating with the Company to request permission to make a Public Offer or negotiate the terms of a Public Offer so long as neither the fact that such communication or request has been made or any of the terms thereof or facts with respect thereto are publicly disclosed, directly or indirectly, by Investor or any of its Affiliates prior to the time any such Public Offer is publicly announced by the Company and Investor for the first time (eerste aankondiging) in accordance with the Dutch public offer rules.
3.2 For the avoidance of doubt and notwithstanding anything in Section 3.1 to the contrary, nothing in this Section 3 shall prohibit, limit or restrict Investor and its Affiliates from exercising their respective rights, performing their respective obligations or otherwise consummating the transactions contemplated by this Agreement or the other Transaction Documents, in each case in accordance with the terms thereof.
3.3 Notwithstanding anything in Section 3.1 to the contrary, nothing in this Section 3 shall prohibit Investor or any of its Affiliates from acquiring any Qualified Securities or the securities of any successor to or person in control of the Company by or through (i) a diversified mutual or pension fund managed by an independent investment adviser or pension plan established for the benefit of Investor’s or any of its Affiliates’ employees or (ii) any 401(k) or similar bona fide benefit plan maintained for the benefit of employees of Investor or any of its Affiliates (and, in the case of subsections (i) and (ii) of proxies or consents (including, without limitationthis sentence, any solicitation such Qualified Securities shall not be considered Beneficially Owned by Investor for purposes of consents that seeks to call a special meeting determining whether the Ownership Limit has been or would be exceeded for any and all purposes of stockholders or by encouraging or participating in any “withhold” or similar campaignthis Agreement); provided that, in each case, with respect to securities of the Company or Fifth Street Senior Floating Rate Corp. (“FSFR”) or any securities convertible or exchangeable into or exercisable for any such securities (collectively, “securities of the Companies”);
(b) make any proposal for consideration by stockholders at any annual or special meeting of the stockholders of the Company or FSFR, whether pursuant to Rule 14a-8 under the Exchange Act, either such company’s constituent documents or otherwise;
(c) knowingly advise, encourage, support, instruct or influence any person with respect to neither Investor nor any of the matters covered by this Section 3.1 or with respect to the voting or disposition of any securities of the Companies at any annual or special meeting of stockholders of the Company or FSFR, except in accordance with Section 3.4, or seek to do so;
(d) agree, attempt, seek or propose to deposit any securities of the Companies in any voting trust or similar arrangement, or subject any securities of the Companies to any arrangement or agreement with respect to the voting thereof, except in accordance with Section 3.4;
(e) knowingly seek or encourage any person to submit nominations in furtherance of a “contested solicitation” or take other action for the election or removal of directors with respect to the Company or FSFR, including any action that is intended to, or is reasonably likely to result in, the replacement of the investment advisor of the Company or FSFR, or a modification to the terms or conditions of either the Company’s or FSFR’s investment advisory agreement;
(f) form, join in or its Affiliates shall in any way participate in a partnership, limited partnership, syndicate request or direct that the trustee or other groupadministrator of such plan purchase or acquire any Qualified Securities. Further, includingnothing herein shall prevent Investor or any of its Affiliates from acquiring securities of, without limitationor from entering into any merger or other business combination with, a group as defined under Section 13(d) of another person that Beneficially Owns any Qualified Securities or the Exchange Act (except such participation related to the reasonable unwinding securities of any such group currently existing as of the date of this Agreement) with any successor to or person who is not identified on Schedule I hereto (any such person, a “Third Party”), with respect to any securities of the Companies or take any other action that would interfere with the ability of Sellers to vote in accordance with this Agreement;
(g) make any disclosure, communication, announcement or statement regarding any intent, purpose, plan or proposal with respect to the FSC Board of Directors (the “Company Board”), the Company investment advisor or the terms and conditions control of the Company’s investment advisory agreement; provided, however, that (x) such person shall have acquired such Qualified Securities or other securities other than in contemplation of Investor or any of its Affiliates acquiring the FSFR Board of Directors (the “FSFR Board”), the FSFR investment advisor or the terms and conditions of FSFR’s investment advisory agreement, the Company, FSFRsecurities of, or entering into any such merger or other business combination with, such person and (y) the management, policies Beneficial Ownership of such Qualified Securities or affairs other securities by such person shall not be a primary reason for Investor or any of either its Affiliates acquiring the Company or FSFRsecurities of, or with respect to this Agreemententering into any such merger or other business combination with, that is inconsistent with such person.
3.4 The Standstill Period will terminate and the provisions of this Agreement;
(h) Section 3 will no longer be in force and effect or seek to effect, offer or propose to effect, cause or participate in, or in any way assist or facilitate any other person to effect or seek, offer or propose to effect or participate in, any tender or exchange offer, merger, consolidation, acquisition, scheme, arrangement, business combination, recapitalization, reorganization, sale or acquisition of assets, liquidation, dissolution, extraordinary dividend, significant share repurchase or other extraordinary transaction involving the Company, FSFR or either of their investment advisors, or any of their subsidiaries or joint ventures or any of their respective securities (each, an “Extraordinary Transaction”), or make any statement or disclosure regarding any intent, purpose, plan or proposal with respect to any Extraordinary Transaction or this Agreement event that is inconsistent with the provisions of this Agreement, including any intent, purpose, plan or proposal that is conditioned on, or would require waiver, amendment, nullification or invalidation of, any provision of this Agreement or take any action that could require the Company or FSFR to make any public disclosure relating to any such intent, purpose, plan, proposal or condition;
(i) a third party publicly announces (ieerste aankondiging) call or seek to call or request the calling of any meeting of stockholders at either the Company or FSFR, including by written consentmakes (uitbrengen) a Public Offer, (ii) seek, alone or in concert with others, representation ona third party, or nominate any candidate toa group of third parties acting in concert, acquires 18% or more of the Company Board issued and outstanding Qualified Securities, in each case without the consent or recommendation of the FSFR Boardmanagement board or supervisory board of the Company, (iii) seek the removal of any member of the Company Board intends to enter into or the FSFR Boardpublicly announces that it is considering a Business Combination Transaction or a Business Combination Proposal, (iv) seek, alone or in concert with others, or support any Third Party in seeking, to replace the investment advisor of the Company enters into a definitive agreement providing for a Business Combination Transaction or the investment advisor of FSFR, (v) solicit consents from the Company or FSFR stockholders or otherwise act or seek to act by written consent, Flu-Mab Agreement and the Innovation Agreement are terminated (vi) conduct a referendum of the Company or FSFR stockholders or (vii) make a request for any stockholders list or any other books and records in Sellers’ capacity than as a Company or FSFR stockholder;
(j) purchase or cause to be purchased or otherwise acquire or agree to acquire beneficial ownership result of any securities issued a material breach by the Company or FSFR, or any securities convertible into or exchangeable for securities issued by the Company or FSFR;
(k) sell, offer to sell, give, pledge, grant a security interest in, encumber, assign, grant any option for the sale of or otherwise transfer or dispose of (each, a “Transfer”) any securities issued by the Company and/or any securities convertible into or exchangeable for securities issued by the Company, unless any Buyer fails to timely perform each of its obligations under Section 1.2(bInvestor), Section 1.3(c) and/or Section 1.3(d)(i) of this Agreement;
(l) institute, solicit or join, as a party, or knowingly assist any other person in instituting, soliciting or joining, any litigation, arbitration or other proceeding against the Company or FSFR or any of their current or former directors or officers (including derivative actions), other than (i) litigation to enforce the provisions of this Agreement and (ii) counterclaims with respect to any proceeding initiated by, or on behalf of, a party to this Agreement or FSFR against Sellers;
(m) enter into or engage in any short sale or purchase, sale or grant of any option, warrant, derivative, convertible security, stock appreciation right or other similar right (including, without limitation, any put or call option or swap transaction) with respect to or having any measurement relating to any securities of the Companies;
(n) enter into any negotiations, arrangements, understanding or agreements (whether written or oral) with, or advise, finance, assist, seek to knowingly persuade or encourage, any Third Party to take any action or make any statement in connection with any of the foregoing, or make any investment in or enter into any arrangement with any other person that engages, or offers or proposes to engage, in any of the foregoing, or otherwise take or cause any action or make any statement inconsistent with any of the foregoing; or
(o) take any action challenging the validity or enforceability of this Agreement, or make or in any way advance any request or proposal that the Company, FSFR, the Company Board or the FSFR Board amend, modify or waive any provision of this Agreement.
Appears in 2 contracts
Samples: Shareholder Agreement (Johnson & Johnson), Shareholder Agreement (Crucell Nv)
Standstill. Effective from Accipiter, on behalf of itself, and solely with respect to Section 3.8(c), each of the Accipiter Nominees, severally but not jointly and solely on behalf of himself, hereby covenants as follows:
(a) Accipiter Life Sciences Fund, LP hereby withdraws its letter to the Company dated October 3, 2007 nominating the Accipiter Nominees and another individual as directors for election to the Rural Board at the Annual Meeting.
(b) Accipiter shall, on the date of this Agreement and continuing until hereof, terminate the later Proposed Solicitation and, within one business day of the certification date hereof, send a letter to the staff of votes for the Company 2017 Division of Corporation Finance of the SEC that (i) states that its nominees have been withdrawn pursuant to Section 3.8(a) hereof, and (ii) withdraws the Preliminary Proxy Statement.
(c) For a period commencing upon the date hereof and ending on the earlier of (i) the date that is thirty (30) days after the one-year anniversary date of the Annual Meeting of Stockholders or the certification of votes for the FSFR (as defined belowii) 2017 Annual Meeting of Stockholders March 31, 2009 (such period, the “Standstill Period”), except to neither Accipiter nor any of its members or any of their affiliates (including the extent expressly permitted by Accipiter Nominees), without the terms of this Agreement, none prior written consent of the Sellers shallRural Board, and Sellers shall cause their respective controlled Affiliates not towill, directly or indirectlyindirectly (i) effect, seek, offer, engage in, propose or cause or participate in any manner, alone or in concert with others:
(a) solicit, or knowingly encourage or in any way engage in any solicitation of, any proxies or consents or become a “participant” in a “solicitation,” directly or indirectly, of “proxies” (as such terms are defined in Regulation 14A the rules and regulations promulgated under the Securities Exchange Act of 1934, as amended (the “Exchange Act”) of proxies or consents (including, without limitation, any solicitation of consents that seeks to call a special meeting of stockholders or by encouraging or participating in any “withhold” or similar campaign)), in each case, with respect relating to securities the election of directors of the Company at the Annual Meeting or Fifth Street Senior Floating Rate Corp. the 2008 Annual Meeting in opposition to the Company, (“FSFR”ii) submit any nomination of an individual for election to the Rural Board (other than pursuant to this Agreement) or any securities convertible or exchangeable into or exercisable for any such securities (collectively, “securities of the Companies”);
(b) make any other proposal for consideration by stockholders at any annual or special meeting of the stockholders of the Company or FSFR, whether (including pursuant to Rule 14a-8 promulgated under the Exchange Act), either such company’s constituent documents or otherwise;
(ciii) knowingly advise, encourage, support, instruct or influence otherwise engage in any person course of conduct with respect to any the purpose of the matters covered by this Section 3.1 or with respect to the voting or disposition of any securities of the Companies at any annual or special meeting of causing other stockholders of the Company or FSFR, except in accordance with Section 3.4, or seek to do so;
(d) agree, attempt, seek or propose vote contrary to deposit any securities the recommendation of the Companies in any voting trust or similar arrangement, or subject any securities of the Companies to any arrangement or agreement with respect to the voting thereof, except in accordance with Section 3.4;
(e) knowingly seek or encourage any person to submit nominations in furtherance of a “contested solicitation” or take other action for Rural Board on the election or removal of directors with respect to the Company or FSFR, including any action matter described in Section 3.7 that is intended to, or is reasonably likely to result in, presented for a vote at the replacement of the investment advisor of the Company or FSFR, or a modification to the terms or conditions of either the Company’s or FSFR’s investment advisory agreement;
Annual Meeting; (fiv) form, join in or in any way participate in a partnership, limited partnership, syndicate or other group, including, without limitation, a group as defined under Section 13(d) of the Exchange Act (except such participation related to the reasonable unwinding of any such group currently existing as of the date of this Agreement) with any person who is not identified on Schedule I hereto (any such person, a “Third Party”), with respect to any securities of the Companies or take any other action that would interfere with the ability of Sellers to vote in accordance with this Agreement;
(g) make any disclosure, communication, announcement or statement regarding any intent, purpose, plan or proposal with respect to the FSC Board of Directors (the “Company Board”), the Company investment advisor or the terms and conditions of the Company’s investment advisory agreement, the FSFR Board of Directors (the “FSFR Board”), the FSFR investment advisor or the terms and conditions of FSFR’s investment advisory agreement, the Company, FSFR, or the management, policies or affairs of either the Company or FSFR, or with respect to this Agreement, that is inconsistent with the provisions of this Agreement;
(h) effect or seek to effect, offer or propose to effect, cause or participate in, or in any way assist or facilitate any other person to effect or seek, offer or propose to effect or participate in, any tender or exchange offer, merger, consolidation, acquisition, scheme, arrangement, business combination, recapitalization, reorganization, sale or acquisition of assets, liquidation, dissolution, extraordinary dividend, significant share repurchase or other extraordinary transaction involving the Company, FSFR or either of their investment advisors, or any of their subsidiaries or joint ventures or any of their respective securities (each, an “Extraordinary Transaction”), or make any statement or disclosure regarding any intent, purpose, plan or proposal with respect to any Extraordinary Transaction or this Agreement that is inconsistent with the provisions of this Agreement, including any intent, purpose, plan or proposal that is conditioned on, or would require waiver, amendment, nullification or invalidation of, any provision of this Agreement or take any action that could require the Company or FSFR to make any public disclosure relating to any such intent, purpose, plan, proposal or condition;
(i) (i) call or seek to call or request the calling of any meeting of stockholders at either the Company or FSFR, including by written consent, (ii) seekotherwise act, alone or in concert with others, representation on, to seek to control or nominate any candidate to, influence the Company Board management or the FSFR Board, (iii) seek the removal of any member of the Company Board or the FSFR Board, (iv) seek, alone or in concert with others, or support any Third Party in seeking, to replace the investment advisor policies of the Company or the investment advisor of FSFR, Rural Board; (v) solicit consents from seek to advise or influence any person with respect to the voting of any securities of the Company on the election of directors or FSFR stockholders or otherwise act or seek any matter described in Section 3.7 that is presented for a vote at the Annual Meeting (provided that this Section 3.8(c)(v) shall not limit Accipiter from providing information to act by written consentthird parties in a neutral manner regarding the Company and the industry in which it participates), (vi) conduct form, join or in any way participate in a referendum “group” within the meaning of Section 13(d)(3) of the Company or FSFR stockholders or (vii) make a request for any stockholders list or any other books and records in Sellers’ capacity as a Company or FSFR stockholder;
(j) purchase or cause to be purchased or otherwise acquire or agree to acquire beneficial ownership of any securities issued by the Company or FSFR, or any securities convertible into or exchangeable for securities issued by the Company or FSFR;
(k) sell, offer to sell, give, pledge, grant a security interest in, encumber, assign, grant any option for the sale of or otherwise transfer or dispose of (each, a “Transfer”) any securities issued by the Company and/or any securities convertible into or exchangeable for securities issued by the Company, unless any Buyer fails to timely perform each of its obligations under Section 1.2(b), Section 1.3(c) and/or Section 1.3(d)(i) of this Agreement;
(l) institute, solicit or join, as a party, or knowingly assist any other person in instituting, soliciting or joining, any litigation, arbitration or other proceeding against the Company or FSFR or any of their current or former directors or officers (including derivative actions), other than (i) litigation to enforce the provisions of this Agreement and (ii) counterclaims Exchange Act with respect to any proceeding initiated by, or on behalf of, a party to this Agreement or FSFR against Sellers;
(m) enter into or engage in any short sale or purchase, sale or grant of any option, warrant, derivative, convertible security, stock appreciation right or other similar right (including, without limitation, any put or call option or swap transaction) with respect to or having any measurement relating to any voting securities of the Companies;
Company (nother than a “group” that exists as of the date of this Agreement), and (vii) enter into any discussions, negotiations, arrangements, understanding arrangements or agreements (whether written or oral) with, or advise, finance, assist, seek understandings with any person other than the Company with respect to knowingly persuade or encourage, any Third Party to take any action or make any statement in connection with any of the foregoing, advise, assist, encourage or make seek to persuade others to take any investment in or enter into any arrangement action with any other person that engages, or offers or proposes respect to engage, in any of the foregoing, foregoing or otherwise announce any plan or proposal to take or cause any action or make any statement inconsistent with respect to any of the foregoing; orprovided that clause (iv) shall not limit Accipiter from non-public communications with the Board and further shall not apply to actions taken by an Accipiter Nominee while serving as a member of the Rural Board and in his capacity as such.
(od) take any action challenging During the validity or enforceability Standstill Period, Accipiter shall not call for a special meeting of the stockholders of the Company.
(e) Accipiter shall cause all Common Stock beneficially owned by Accipiter to be present at the Annual Meeting and the 2008 Annual Meeting for the purposes of establishing quorum and to be voted (i) for the director nominees recommended by the Rural Board for election at the Annual Meeting and the 2008 Annual Meeting (provided such nominations do not constitute a violation of this Agreement), or make or and (ii) in any way advance any request or proposal that accordance with the Companyrecommendations of the Rural Board on the proposals to be presented at the Annual Meeting as referenced in Section 3.7. No later than five business days prior to each such meeting of stockholders, FSFR, the Company Board or the FSFR Board amend, modify or waive any provision of Accipiter shall cause all Common Stock beneficially owned by Accipiter to be voted in accordance with this AgreementSection 3.8(e).
Appears in 2 contracts
Samples: Settlement Agreement (Accipiter Capital Management, LLC), Settlement Agreement (Rural/Metro Corp /De/)
Standstill. Effective from During the date of this Agreement and continuing until the later of the certification of votes for the Company 2017 Annual Meeting of Stockholders or the certification of votes for the FSFR (as defined below) 2017 Annual Meeting of Stockholders (the “Standstill Period”), except to the extent expressly permitted by the terms of this Agreement, none of the Sellers shall, and Sellers shall cause their respective controlled Affiliates not tonot, directly or indirectly, in any manner, alone or in concert with otherswithout the prior written consent of the Purchaser:
(a) solicitAcquire, agree to acquire or knowingly encourage or in make any way engage in any solicitation ofpublic proposal to acquire, any proxies or consents or become a “participant” in a “solicitation,” directly or indirectly, as such terms are defined in Regulation 14A under the Securities Exchange Act Beneficial Ownership of 1934, as amended (the “Exchange Act”) of proxies or consents (including, without limitation, any solicitation of consents that seeks to call a special meeting of stockholders or by encouraging or participating in any “withhold” or similar campaign), in each case, with respect to common equity securities of the Company or Fifth Street Senior Floating Rate Corp. (“FSFR”) Purchaser or any other securities convertible or exchangeable into or exercisable for any such securities of the Purchaser entitled to vote generally in the election of directors of the Purchaser (collectively, “Voting Securities”), or securities of the Companies”Purchaser that are convertible, exchangeable or exercisable into Voting Securities (other than (i) the acquisition of common stock of the Purchaser or other Voting Securities as a result of any stock splits, stock dividends or other distributions or recapitalizations, reclassifications, reorganizations or similar transactions or offerings made available by the Purchaser to holders of Voting Securities, including rights offerings, and (ii) from an Affiliate of any Seller in a Permitted Transfer);
(b) make Deposit any proposal for consideration by stockholders at Voting Securities in a voting trust or similar arrangement or subject any annual Voting Securities to any voting agreement, pooling arrangement or special meeting similar arrangement (other than with another Seller or any direct or indirect subsidiary of the stockholders Sellers), or grant any proxy with respect to any Voting Securities (other than (x) to the Purchaser or a person specified by the Purchaser, in a proxy card provided to shareholders of the Company Purchaser by or FSFR, whether pursuant on behalf of the Purchaser or (y) to Rule 14a-8 under any direct or indirect subsidiary of the Exchange Act, either such company’s constituent documents or otherwiseSellers);
(c) Enter, agree to enter, propose or offer to enter into or facilitate any merger, business combination, tender offer, recapitalization, restructuring, change in control transaction or other similar extraordinary transaction involving the Purchaser or any of its subsidiaries; provided, however, that the Sellers may vote in any such merger, business combination, tender offer, recapitalization, restructuring, change in control transaction or other similar extraordinary transaction in accordance with their reasonable discretion;
(d) Make, or in any way participate or engage in, any “solicitation” of “proxies” (as such terms are used in the proxy rules of the Securities and Exchange Commission) to vote, or advise or knowingly advise, encourage, support, instruct or influence any person with respect to any Person (other than a controlled Affiliate of the matters covered by this Section 3.1 or Sellers) with respect to the voting or disposition of of, any voting securities of the Companies at Purchaser or any annual or special meeting of stockholders of the Company or FSFR, except in accordance with Section 3.4, or seek to do so;
(d) agree, attempt, seek or propose to deposit any securities of the Companies in any voting trust or similar arrangement, or subject any securities of the Companies to any arrangement or agreement with respect to the voting thereof, except in accordance with Section 3.4its subsidiaries;
(e) knowingly seek or encourage any person to submit nominations in furtherance of a “contested solicitation” or take other action for the election or removal of directors with respect to the Company or FSFR, including any action that is intended toCall, or is reasonably likely seek to result incall, the replacement a meeting of the investment advisor shareholders of the Company Purchaser or FSFR, or a modification to initiate any shareholder proposal for action by the terms or conditions shareholders of either the Company’s or FSFR’s investment advisory agreementPurchaser;
(f) formForm, join in or in any way participate in a partnership, limited partnership, syndicate or other group, including, without limitation, a group as defined under Group (within the meaning of Section 13(d13(d)(3) of the Exchange Act Act) (except such participation related to the reasonable unwinding of any such group currently existing as other than with an Affiliate of the date Sellers, or any direct or indirect subsidiary, of this Agreement) with any person who is not identified on Schedule I hereto (any such person, a “Third Party”the Sellers), with respect to any voting securities of the Companies or take any other action that would interfere with the ability of Sellers to vote in accordance with this AgreementPurchaser;
(g) make any disclosure, communication, announcement or statement regarding any intent, purpose, plan or proposal with respect to the FSC Board of Directors (the “Company Board”), the Company investment advisor or the terms and conditions of the Company’s investment advisory agreement, the FSFR Board of Directors (the “FSFR Board”), the FSFR investment advisor or the terms and conditions of FSFR’s investment advisory agreement, the Company, FSFR, or the management, policies or affairs of either the Company or FSFR, or with respect to this Agreement, that is inconsistent with the provisions of this Agreement;
(h) effect or seek to effect, offer or propose to effect, cause or participate in, or in any way assist or facilitate any other person to effect or seek, offer or propose to effect or participate in, any tender or exchange offer, merger, consolidation, acquisition, scheme, arrangement, business combination, recapitalization, reorganization, sale or acquisition of assets, liquidation, dissolution, extraordinary dividend, significant share repurchase or other extraordinary transaction involving the Company, FSFR or either of their investment advisors, or any of their subsidiaries or joint ventures or any of their respective securities (each, an “Extraordinary Transaction”), or make any statement or disclosure regarding any intent, purpose, plan or proposal with respect to any Extraordinary Transaction or this Agreement that is inconsistent with the provisions of this Agreement, including any intent, purpose, plan or proposal that is conditioned on, or would require waiver, amendment, nullification or invalidation of, any provision of this Agreement or take any action that could require the Company or FSFR to make any public disclosure relating to any such intent, purpose, plan, proposal or condition;
(i) (i) call or seek to call or request the calling of any meeting of stockholders at either the Company or FSFR, including by written consent, (ii) seekOtherwise act, alone or in concert with others, representation onto seek to control or influence the board of directors of the Purchaser, or nominate any candidate to, the Company Board management or the FSFR Board, (iii) seek the removal of any member policies of the Company Board or the FSFR Board, (iv) seek, alone or in concert with others, or support any Third Party in seeking, to replace the investment advisor of the Company or the investment advisor of FSFR, (v) solicit consents from the Company or FSFR stockholders or otherwise act or seek to act by written consent, (vi) conduct a referendum of the Company or FSFR stockholders or (vii) make a request for any stockholders list or any other books and records in Sellers’ capacity as a Company or FSFR stockholder;
(j) purchase or cause to be purchased or otherwise acquire or agree to acquire beneficial ownership of any securities issued by the Company or FSFR, or any securities convertible into or exchangeable for securities issued by the Company or FSFR;
(k) sell, offer to sell, give, pledge, grant a security interest in, encumber, assign, grant any option for the sale of or otherwise transfer or dispose of (each, a “Transfer”) any securities issued by the Company and/or any securities convertible into or exchangeable for securities issued by the Company, unless any Buyer fails to timely perform each of its obligations under Section 1.2(b), Section 1.3(c) and/or Section 1.3(d)(i) of this Agreement;
(l) institute, solicit or join, as a party, or knowingly assist any other person in instituting, soliciting or joining, any litigation, arbitration or other proceeding against the Company or FSFR or any of their current or former directors or officers (including derivative actions), other than (i) litigation to enforce the provisions of this Agreement and (ii) counterclaims with respect to any proceeding initiated by, or on behalf of, a party to this Agreement or FSFR against Sellers;
(m) enter into or engage in any short sale or purchase, sale or grant of any option, warrant, derivative, convertible security, stock appreciation right or other similar right Purchaser (including, without limitation, any put or call option or swap transaction) with respect the submission of nominees for election to or having any measurement relating to any securities the board of directors of the CompaniesPurchaser);
(nh) enter into Publicly disclose any negotiationsintention, arrangementsplan or arrangement prohibited by, understanding or agreements (whether written or oral) inconsistent with, or advise, finance, assist, seek to knowingly persuade or encourage, any Third Party to take any action or make any statement in connection with any of the foregoing, ;
(i) Advise or make any investment in knowingly assist or encourage or enter into any arrangement discussions, negotiations, agreements or arrangements with any other person that engages, Person or offers or proposes to engage, in any Group (within the meaning of Section 13(d)(3) of the foregoing, or otherwise take or cause any action or make any statement inconsistent Exchange Act) in connection with any of the foregoing; or
(oj) take Knowingly Transfer more than three percent (3%) of the Issued Shares to any action challenging the validity one individual or enforceability of this Agreement, or make or in any way advance any request or proposal that the Company, FSFR, the Company Board or the FSFR Board amend, modify or waive any provision of this Agreemententity.
Appears in 1 contract
Standstill. Effective from The Purchasers agree that during the date of this Agreement and continuing until Standstill Period, without the later prior written approval of the certification of votes for Board, the Company 2017 Annual Meeting of Stockholders or the certification of votes for the FSFR (as defined below) 2017 Annual Meeting of Stockholders (the “Standstill Period”), except to the extent expressly permitted by the terms of this Agreement, none of the Sellers shall, and Sellers shall cause their respective controlled Affiliates not toPurchasers will not, directly or indirectly, in and will cause their respective Affiliates (which for the avoidance of doubt, will not include the Company or any mannerof its Subsidiaries) and Subsidiaries (the Purchasers, alone or in concert with otherstheir respective Affiliates and Subsidiaries, collectively, the “Standstill Parties”) not to:
(a) solicitacquire, offer or knowingly encourage seek to acquire, agree to acquire or in any way engage in any solicitation ofmake a proposal to acquire, by purchase or otherwise, any proxies equity securities or consents direct or become a “participant” in a “solicitation,” directly or indirectly, as such terms are defined in Regulation 14A under the Securities Exchange Act of 1934, as amended (the “Exchange Act”) of proxies or consents (including, without limitation, indirect rights to acquire any solicitation of consents that seeks to call a special meeting of stockholders or by encouraging or participating in any “withhold” or similar campaign), in each case, with respect to equity securities of the Company or Fifth Street Senior Floating Rate Corp. (“FSFR”) or any securities convertible or exchangeable into or exercisable for any such securities (collectively, “securities of the Companies”);
(b) make any proposal for consideration by stockholders at any annual or special meeting of the stockholders of the Company or FSFR, whether pursuant to Rule 14a-8 under the Exchange Act, either such company’s constituent documents or otherwise;
(c) knowingly advise, encourage, support, instruct or influence any person with respect to any of the matters covered by this Section 3.1 or with respect to the voting or disposition of any securities of the Companies at any annual or special meeting of stockholders of the Company or FSFR, except in accordance with Section 3.4, or seek to do so;
(d) agree, attempt, seek or propose to deposit any securities of the Companies in any voting trust or similar arrangement, or subject any securities of the Companies to any arrangement or agreement with respect to the voting thereof, except in accordance with Section 3.4;
(e) knowingly seek or encourage any person to submit nominations in furtherance of a “contested solicitation” or take other action for the election or removal of directors with respect to the Company or FSFR, including any action that is intended to, or is reasonably likely to result in, the replacement of the investment advisor of the Company or FSFR, or a modification to the terms or conditions of either the Company’s or FSFR’s investment advisory agreement;
(f) form, join in or in any way participate in a partnership, limited partnership, syndicate or other group, including, without limitation, a group as defined under Section 13(d) of the Exchange Act (except such participation related to the reasonable unwinding of any such group currently existing as of the date of this Agreement) with any person who is not identified on Schedule I hereto (any such person, a “Third Party”), with respect to any securities of the Companies or take any other action that would interfere with the ability of Sellers to vote in accordance with this Agreement;
(g) make any disclosure, communication, announcement or statement regarding any intent, purpose, plan or proposal with respect to the FSC Board of Directors (the “Company Board”), the Company investment advisor or the terms and conditions of the Company’s investment advisory agreement, the FSFR Board of Directors (the “FSFR Board”), the FSFR investment advisor or the terms and conditions of FSFR’s investment advisory agreement, the Company, FSFR, or the management, policies or affairs of either the Company or FSFR, or with respect to this Agreement, that is inconsistent with the provisions of this Agreement;
(h) effect or seek to effect, offer or propose to effect, cause or participate in, or in any way assist or facilitate any other person to effect or seek, offer or propose to effect or participate in, any tender or exchange offer, merger, consolidation, acquisition, scheme, arrangement, business combination, recapitalization, reorganization, sale or acquisition of assets, liquidation, dissolution, extraordinary dividend, significant share repurchase or other extraordinary transaction involving the Company, FSFR or either of their investment advisors, or any of their subsidiaries or joint ventures or any of their respective securities (each, an “Extraordinary Transaction”), or make any statement or disclosure regarding any intent, purpose, plan or proposal with respect to any Extraordinary Transaction or this Agreement that is inconsistent with the provisions of this Agreement, including any intent, purpose, plan or proposal that is conditioned on, or would require waiver, amendment, nullification or invalidation of, any provision of this Agreement or take any action that could require the Company or FSFR to make any public disclosure relating to any such intent, purpose, plan, proposal or condition;
(i) (i) call or seek to call or request the calling of any meeting of stockholders at either the Company or FSFR, including by written consent, (ii) seek, alone or in concert with others, representation on, or nominate any candidate to, the Company Board or the FSFR Board, (iii) seek the removal of any member of the Company Board or the FSFR Board, (iv) seek, alone or in concert with others, or support any Third Party in seeking, to replace the investment advisor of the Company or the investment advisor of FSFR, (v) solicit consents from the Company or FSFR stockholders or otherwise act or seek to act by written consent, (vi) conduct a referendum of the Company or FSFR stockholders or (vii) make a request for any stockholders list or any other books and records in Sellers’ capacity as a Company or FSFR stockholder;
(j) purchase or cause to be purchased or otherwise acquire or agree to acquire beneficial ownership of any securities issued by the Company or FSFRits Subsidiaries, or any securities convertible into or exchangeable for any such equity securities issued (but in any case excluding (A) issuances by the Company of Warrant Shares pursuant to any exercise of the Warrants in accordance with the terms of the Warrant Agreement, (B) issuances of the Warrants by the Company to the Purchasers pursuant to this Agreement, (C) purchases by the Purchasers or FSFRtheir respective Affiliates of the New Shares and (D) any subsequent purchases of Common Stock by the Purchasers or their respective Affiliates to adjust for any dilution in the Purchasers’ (or their respective Affiliates’) ownership of the New Shares as a result of the Company issuing shares of Common Stock, dividends in kind thereon or other securities convertible into shares of Common Stock other than ordinary course grants of securities consistent with past practice and pursuant to the Equity Plan (the “Dilutive Event”) in an amount that maintains the Purchasers’ ownership in the Company pursuant to its purchases of New Shares immediately prior to such Dilutive Event;
(kb) sellmake any public announcement with respect to, or offer, seek, propose or publicly indicate an interest in (in each case with or without conditions), any merger, consolidation, business combination, tender or exchange offer to sell, give, pledge, grant a security interest in, encumber, assign, grant any option for the sale Company’s equity securities or purchase of or otherwise transfer or dispose any material assets of (each, a “Transfer”) any securities issued by the Company and/or any securities convertible into or exchangeable for securities issued by the Company, unless any Buyer fails to timely perform each of its obligations under Section 1.2(b), Section 1.3(c) and/or Section 1.3(d)(i) of this Agreement;
(l) institute, solicit or join, as a party, or knowingly assist any other person in instituting, soliciting or joining, any litigation, arbitration or other proceeding against the Company or FSFR or any of their current or former directors or officers (including derivative actions), other than (i) litigation to enforce the provisions of this Agreement and (ii) counterclaims with respect to any proceeding initiated byits Subsidiaries, or on behalf of, a party to this Agreement or FSFR against Sellers;
(m) enter into or engage in any short sale or purchase, sale or grant of any option, warrant, derivative, convertible security, stock appreciation right or other similar right (including, without limitation, any put or call option or swap transaction) with respect to or having any measurement relating to any securities of the Companies;
(n) enter into any discussions, negotiations, arrangements, understanding understandings or agreements (whether written or oral) withwith any other Person regarding any of the foregoing; provided that this clause shall not prohibit a Standstill Party from making confidential proposals to the Board regarding mergers, consolidations or other business combinations with the Company or a purchase of any of the Company’s material assets so long as such proposals would not reasonably be expected to require any public disclosure by the Purchasers or the Company or their respective Affiliates;
(c) make any public announcement with respect to, or adviseoffer, financeseek, assistpropose or publicly indicate an interest in (in each case with or without conditions), any recapitalization, reorganization, restructuring, liquidation, dissolution of the Company or its Subsidiaries, or any other extraordinary transaction involving the Company or any Subsidiary of the Company or any of their respective equity securities, or enter into any discussions, negotiations, arrangements, understandings or agreements (whether written or oral) with any other Person regarding any of the foregoing; provided that this clause shall not prohibit a Standstill Party from making confidential proposals to the Board regarding such matters so long as such proposals would not reasonably be expected to require any public disclosure by the Purchasers or the Company or their respective Affiliates;
(d) otherwise act, alone or in concert with others, to control or seek to control, advise or knowingly persuade influence, in any manner, management or encouragethe board of directors, or the policies of the Company or any of its Subsidiaries (other than any Apollo Purchaser Director acting in her or her capacity as a member of the Board or voting at a meeting of the Company’s stockholders);
(e) make or in any way encourage or participate in any “solicitation” of “proxies” (whether or not relating to the election or removal of directors), as such terms are used in the rules of the SEC, to vote, or knowingly seek to advise or influence any Person with respect to voting of, any Third Party voting equity securities of the Company or any of its Subsidiaries, or call or seek to call a meeting of the Company’s stockholders or initiate any stockholder proposal for action by the Company’s stockholders, or (other than with respect to any Apollo Purchaser Director, to the extent in accordance with the terms and conditions of this Agreement) seek election to or to place a representative on the Board or seek the removal of any director from the Board;
(f) take any action that would or would reasonably be expected to require the Purchasers, their respective Affiliates or the Company to make a public announcement regarding the possibility of a transaction or any statement of the events described in this Section 5.05;
(g) enter into any discussions, negotiations, communications, arrangements or understandings with any third party (including security holders of the Company, but excluding, for the avoidance of doubt, any Affiliates of the Purchasers who are also security holders of the Company) with respect to any of the foregoing, including, without limitation, forming, joining or in any way participating in a “group” (as defined in Section 13(d)(3) of the Exchange Act) with any third party (excluding, for the avoidance of doubt, the Purchaser Parties) with respect to the Company or any of its Subsidiaries or any securities of the Company or of any of its Subsidiaries or otherwise in connection with any of the foregoing, or ;
(h) make any investment in public proposal or enter into public statement of inquiry or publicly disclose any intention, plan or arrangement with any other person that engages, or offers or proposes to engage, in any of the foregoing, or otherwise take or cause any action or make any statement inconsistent consistent with any of the foregoing; or;
(oi) take knowingly advise, assist, encourage or direct any action challenging the validity or enforceability of this AgreementPerson to do, or make to knowingly advise, assist, encourage or in direct any way advance other Person to do, any of the foregoing;
(j) request or proposal that the Company, FSFR, the Company Board or the FSFR Board amendany of its Representatives, modify directly or indirectly, to amend or waive any provision of this AgreementSection 5.05; or
(k) contest the validity of this Section 5.05 or make, initiate, take or participate in any demand, Action (legal or otherwise) or proposal to amend, waive or terminate any provision of this Section 5.05; provided, however, that nothing in this Section 5.05 will limit (1) the Purchasers’ (or their respective Affiliates’) rights pursuant to the Transaction Documents, in accordance with their terms; (2) any actions taken by the Apollo Purchaser Director, or the ability of the Apollo Purchaser Director to vote or otherwise exercise his or her legal duties, in each case in his or her capacity as a member of the Board; or (3) any private communications, proposals or offers for a transaction made to the Chief Executive Officer of the Company or the Chairman of the Board (so long as the manner or content of any such communication would not reasonably be expected to require any public disclosure by the Company).
Appears in 1 contract
Standstill. Effective from The Magnetar Investors and the date of this Agreement White Hat Investors, severally and continuing not jointly, agree that, until the later earliest of (i) January 22, 2025 with respect to clause (b) below and, otherwise, January 22, 2026, (ii) the certification occurrence of votes for the Company 2017 Annual Meeting of Stockholders or the certification of votes for the FSFR any Insolvency Proceeding (as defined belowin the Existing Credit Agreement) 2017 Annual Meeting by or against the Company or any of Stockholders its Subsidiaries and (iii) the occurrence of (1) an Event of Default (as defined in the Existing Credit Agreement), or any similar event under any other indebtedness for borrowed money of the Company or any Subsidiary thereof incurred as part of a refinancing of, or substitution or exchange for, the indebtedness for borrowed money under the Existing Credit Agreement, in each case, for the avoidance of doubt, after taking into account any applicable cure periods contained in the Existing Credit Agreement or the applicable credit agreement); or (2) the acceleration of the maturity of the obligations under the Existing Credit Agreement (or under any other indebtedness for borrowed money of the Company or any Subsidiary thereof incurred as part of a refinancing of, or in substitution or exchange for, the indebtedness for borrowed money under the Existing Credit Agreement) and such acceleration has not been rescinded by the requisite holders of such indebtedness for borrowed money within seven (7) Business Days following such acceleration (the earliest of (i), (ii) and (iii), the “Standstill PeriodTermination Date”), except to without the extent expressly permitted by the terms of this Agreementprior consent, none invitation, or authorization of the Sellers shallCompany or the Company’s Board of Directors, and Sellers shall cause their respective controlled Affiliates not to, directly or indirectly, in any manner, alone or in concert with others:
(a) solicitother than pursuant to clause (b) below, acquire or agree to acquire, whether by private or open market purchase, a block trade, or knowingly encourage a tender or exchange offer, beneficial ownership of, or any economic interest in, any right to direct the voting or disposition of, or any other right with respect to any equity securities or direct or indirect rights to acquire any equity securities of the Company, any securities convertible into or exchangeable for any such equity securities, in each case solely to the extent that, after giving effect to such acquisition or transaction, either (i) the Magnetar Investors, taken together with their respective Affiliates, would beneficially own (as determined in accordance with Rule 13d-3 under the Exchange Act), in the aggregate, greater than 19.99% of the then outstanding Common Stock or (ii) the White Hat Investors, taken together with its respective Affiliates, would beneficially own (as determined in accordance with Rule 13d-3 under the Exchange Act), in the aggregate, greater than 9.99% of the then outstanding Common Stock;
(b) enter into any options, puts, calls, swaps or other derivative or convertible instruments, hedging contracts or other derivative securities or similar contracts or instruments in any way engage in any solicitation ofrelated to the purchase or sale of Common Stock and/or price of shares of the Common Stock;
(c) (i) make, any proxies or consents publicly support or become a “participant” in (as such term is defined or used under the Exchange Act, other than solely by voting shares or complying with applicable reporting requirements under Section 13(d) of the Exchange Act) or by virtue of having a representative serving on the Company’s Board of Directors, any “solicitation,” directly of “proxies” or indirectlyconsents (whether or not relating to the election or removal of directors), as such terms are defined used in Regulation 14A the rules of the SEC (but without regard to the exclusion set forth in Rule 14a-1(l)(2)(iv) promulgated under the Securities Exchange Act of 1934, as amended (the “Exchange Act”) of proxies or consents (including, without limitation, any solicitation of consents that seeks to call a special meeting of stockholders or by encouraging or participating in any “withhold” or similar campaign), in each case, with respect to vote any voting securities of the Company or Fifth Street Senior Floating Rate Corp. (“FSFR”) or any securities convertible or exchangeable into or exercisable for any such securities voting securities, (collectivelyii) request, “securities call or seek to call (or, for the avoidance of the Companies”);
(bdoubt, publicly support another Person’s request or call for) make any proposal for consideration by stockholders at any annual or special a meeting of the Company’s stockholders or action by written consent (or the setting of a record date therefor), other than of or by the holders of the Company Series B-1 Preferred Stock voting as a separate class for the purpose of voting or FSFRconsenting to the matters on which the holders of Series B-1 Preferred Stock have the right to vote or consent to under Section 9 of the Certificate of Designations, whether pursuant (iii) initiate any stockholder proposal for action by the Company’s stockholders, (iv) except as contemplated by this Agreement and the Certificate of Designations, seek representation on the Board of Directors, or (v) advise, assist, knowingly encourage or direct any Person to Rule 14a-8 under do, or to advise, assist, knowingly encourage or direct any other Person to do, any of the Exchange Act, either such company’s constituent documents or otherwise;
foregoing prohibited actions set forth in clauses (i) through (iv); provided that nothing in this clause (c) knowingly advise, encourage, support, instruct or influence any person with respect to any of the matters covered by this Section 3.1 or with respect to shall restrict the voting or disposition by proxy in the ordinary course of any securities of the Companies at any annual or special meeting of stockholders of the Company or FSFR, except in accordance with Section 3.4, or seek to do sobusiness;
(d) agree, attempt, seek or propose to deposit make any securities of the Companies in any voting trust or similar arrangement, or subject any securities of the Companies to any arrangement or agreement public announcement with respect to the voting thereofto, except in accordance with Section 3.4;
(e) knowingly seek or encourage any person to submit nominations in furtherance of a “contested solicitation” offer or take other action for the election or removal of directors with respect to the Company or FSFR, including any action that is intended towould reasonably be expected to require the Company to make a public announcement regarding (in each case with or without conditions, or is reasonably likely to result in, the replacement but other than a public announcement in respect of the investment advisor implementation of proposals, actions or transactions approved by the Company), either alone or in concert with others, any merger, consolidation, business combination, tender or exchange offer, recapitalization, reorganization or purchase of more than 50% of the assets, properties or securities of the Company or FSFRany Subsidiary of the Company or any other extraordinary transaction involving the Company or any Subsidiary of the Company (it being understood that the foregoing shall not restrict a Person from tendering shares, receiving payment for shares or a modification to otherwise participating in any such transaction on the terms or conditions same basis as other stockholders of either the Company’s or FSFR’s investment advisory agreement;
); provided, that, nothing in this clause (fd) form, join in or in any way participate in a partnership, limited partnership, syndicate or other group, including, without limitation, a group as defined is intended to prohibit the Investors’ compliance with applicable reporting requirements under Section 13(d) of the Exchange Act Act;
(except such participation related to the reasonable unwinding of e) enter into any such group currently existing as agreements, arrangements or understandings with any third party (including security holders of the date of this AgreementCompany) with any person who is not identified on Schedule I hereto (any such person, a “Third Party”), with respect to any securities of the Companies or take any other action that would interfere with the ability of Sellers to vote in accordance with this Agreement;
foregoing clauses (ga) make any disclosure, communication, announcement or statement regarding any intent, purpose, plan or proposal with respect to the FSC Board of Directors through (the “Company Board”d), the Company investment advisor or the terms and conditions of the Company’s investment advisory agreementincluding forming, the FSFR Board of Directors (the “FSFR Board”), the FSFR investment advisor or the terms and conditions of FSFR’s investment advisory agreement, the Company, FSFR, or the management, policies or affairs of either the Company or FSFR, or with respect to this Agreement, that is inconsistent with the provisions of this Agreement;
(h) effect or seek to effect, offer or propose to effect, cause or participate in, joining or in any way assist or facilitate any other person to effect or seek, offer or propose to effect or participate in, any tender or exchange offer, merger, consolidation, acquisition, scheme, arrangement, business combination, recapitalization, reorganization, sale or acquisition of assets, liquidation, dissolution, extraordinary dividend, significant share repurchase or other extraordinary transaction involving the Company, FSFR or either of their investment advisors, or any of their subsidiaries or joint ventures or any of their respective securities participating in a “group” (each, an “Extraordinary Transaction”), or make any statement or disclosure regarding any intent, purpose, plan or proposal with respect to any Extraordinary Transaction or this Agreement that is inconsistent with the provisions of this Agreement, including any intent, purpose, plan or proposal that is conditioned on, or would require waiver, amendment, nullification or invalidation of, any provision of this Agreement or take any action that could require the Company or FSFR to make any public disclosure relating to any such intent, purpose, plan, proposal or condition;
(ias defined in Section 13(d)(3) (i) call or seek to call or request the calling of any meeting of stockholders at either the Company or FSFR, including by written consent, (ii) seek, alone or in concert with others, representation on, or nominate any candidate to, the Company Board or the FSFR Board, (iii) seek the removal of any member of the Company Board or the FSFR Board, (iv) seek, alone or in concert with others, or support any Third Party in seeking, to replace the investment advisor of the Company or the investment advisor of FSFR, (v) solicit consents from the Company or FSFR stockholders or otherwise act or seek to act by written consent, (vi) conduct a referendum of the Company or FSFR stockholders or (vii) make a request for any stockholders list or any other books and records in Sellers’ capacity as a Company or FSFR stockholder;
(j) purchase or cause to be purchased or otherwise acquire or agree to acquire beneficial ownership of any securities issued by the Company or FSFR, or any securities convertible into or exchangeable for securities issued by the Company or FSFR;
(k) sell, offer to sell, give, pledge, grant a security interest in, encumber, assign, grant any option for the sale of or otherwise transfer or dispose of (each, a “Transfer”) any securities issued by the Company and/or any securities convertible into or exchangeable for securities issued by the Company, unless any Buyer fails to timely perform each of its obligations under Section 1.2(b), Section 1.3(c) and/or Section 1.3(d)(i) of this Agreement;
(l) institute, solicit or join, as a party, or knowingly assist any other person in instituting, soliciting or joining, any litigation, arbitration or other proceeding against the Company or FSFR or any of their current or former directors or officers (including derivative actions), other than (i) litigation to enforce the provisions of this Agreement and (ii) counterclaims with respect to any proceeding initiated by, or on behalf of, a party to this Agreement or FSFR against Sellers;
(m) enter into or engage in any short sale or purchase, sale or grant of any option, warrant, derivative, convertible security, stock appreciation right or other similar right (including, without limitation, any put or call option or swap transactionExchange Act) with respect to or having any measurement relating to any securities of the Companies;
(n) enter into any negotiations, arrangements, understanding or agreements (whether written or oral) with, or advise, finance, assist, seek to knowingly persuade or encourage, any Third Party to take any action or make any statement third party in connection with any of the foregoingforegoing (it being understood that each Investor and its Affiliates, or make any investment in the Investors collectively, shall not be considered a “group” for purposes of this clause (e));
(f) except as contemplated by this Agreement and the Certificate of Designations, request the Company or enter into any arrangement with any other person that engages, or offers or proposes to engage, in any of the foregoingits Representatives, directly or otherwise take or cause any action or make any statement inconsistent with any of the foregoing; or
(o) take any action challenging the validity or enforceability of this Agreementindirectly, or make or in any way advance any request or proposal that the Company, FSFR, the Company Board or the FSFR Board amend, modify to amend or waive any provision of this Agreement.Section 4.7; provided that this clause shall not prohibit the making of a confidential request to the Company seeking an amendment or waiver of the provisions of this
Appears in 1 contract
Samples: Subscription and Exchange Agreement (Comtech Telecommunications Corp /De/)
Standstill. Effective from The PL Capital Parties each agree that, for so long as Richard Fates and/or Richard Lashley (xx, xn the event of xxxxx, xxxxxxlity or resignation of either of them, a substitute nominee of PL Capital whose substitution shall be subject to the approval of the Central Bancorp Board of Directors, such approval not to be unreasonably withheld) remains a director of Central Bancorp or Central Cooperative Bank or PL Capital beneficially owns 5 percent or more of the outstanding Central Bancorp shares (based on the 1,663,133 shares outstanding at the date of execution of this Agreement Agreement), after the date hereof (the "Standstill Period"), they and continuing until the later of the certification of votes for the Company 2017 Annual Meeting of Stockholders their affiliates or the certification of votes for the FSFR associates (as defined below) 2017 Annual Meeting of Stockholders (the “Standstill Period”), except in Rule 12b-2 promulgated pursuant to the extent expressly permitted by the terms of this Agreement, none of the Sellers shall, and Sellers shall cause their respective controlled Affiliates not to, directly or indirectly, in any manner, alone or in concert with others:
(a) solicit, or knowingly encourage or in any way engage in any solicitation of, any proxies or consents or become a “participant” in a “solicitation,” directly or indirectly, as such terms are defined in Regulation 14A under the Securities Exchange Act of 1934, as amended (the “"Exchange Act”")) of proxies will not (and they will not assist or consents (includingencourage others to), directly or indirectly, in any manner, without limitationprior written approval of the Board of Directors of Central Bancorp:
(i) acquire, offer to acquire, solicit an offer to sell or agree to acquire directly or indirectly, alone or in concert with others, by purchase, gift or otherwise, any solicitation direct or indirect beneficial ownership (within the meaning of consents that seeks to call a special meeting of stockholders Rule 13d-3 under the Exchange Act) or by encouraging any direct or participating indirect interest in any “withhold” securities or similar campaigndirect or indirect rights, warrants or options to acquire, or securities convertible into or exchangeable for (collectively, an "Acquisition"), any securities of Central Bancorp ("Securities"), provided that PL Capital may sell shares without the prior approval of the Board of Directors of Central Bancorp subject to the Right of First Refusal in each caseParagraph 8 of this Agreement;
(ii) make, or in any way participate in, directly or indirectly, alone or in concert with others, any "solicitation" of "proxies" to vote (as such terms are used in the proxy rules of the Securities and Exchange Commission promulgated pursuant to Section 14 of the Exchange Act) or seek to advise or influence in any manner whatsoever any person with respect to the voting of any voting securities of Central Bancorp, except pursuant to Central Bancorp's publication of its proxy statement;
(iii) form, join or in any way participate in a "group" within the Company meaning of Section 13(d)(3) of the Exchange Act with respect to any voting securities of Central Bancorp;
(iv) acquire, offer to acquire or Fifth Street Senior Floating Rate Corp. agree to acquire, directly or indirectly, alone or in concert with others, by purchase, exchange or otherwise, (“FSFR”a) any of the assets, tangible and intangible, of Central Bancorp or (b) direct or indirect rights, warrants or options to acquire any assets of Central Bancorp;
(v) arrange, or in any way participate, directly or indirectly, in any financing (except for margin loan financing for shares presently beneficially owned) for the purchase of any securities or securities convertible or exchangeable into or exercisable for any such securities (collectively, “securities or assets of the Companies”)Central Bancorp;
(bvi) make any proposal for consideration by stockholders otherwise act, alone or in concert with others (except in their expressing views as directors at any annual or special meeting meetings of the stockholders board of directors or a committee of the Company board of directors of Central Bancorp or FSFRCentral Cooperative Bank), whether pursuant to Rule 14a-8 under the Exchange Act, either such company’s constituent documents seek to offer to Central Bancorp or otherwise;
(c) knowingly advise, encourage, support, instruct or influence any person with respect to any of the matters covered by this Section 3.1 or with respect to the voting or disposition of its stockholders any securities of the Companies at any annual or special meeting of stockholders of the Company or FSFR, except in accordance with Section 3.4, or seek to do so;
(d) agree, attempt, seek or propose to deposit any securities of the Companies in any voting trust or similar arrangement, or subject any securities of the Companies to any arrangement or agreement with respect to the voting thereof, except in accordance with Section 3.4;
(e) knowingly seek or encourage any person to submit nominations in furtherance of a “contested solicitation” or take other action for the election or removal of directors with respect to the Company or FSFR, including any action that is intended to, or is reasonably likely to result in, the replacement of the investment advisor of the Company or FSFR, or a modification to the terms or conditions of either the Company’s or FSFR’s investment advisory agreement;
(f) form, join in or in any way participate in a partnership, limited partnership, syndicate or other group, including, without limitation, a group as defined under Section 13(d) of the Exchange Act (except such participation related to the reasonable unwinding of any such group currently existing as of the date of this Agreement) with any person who is not identified on Schedule I hereto (any such person, a “Third Party”), with respect to any securities of the Companies or take any other action that would interfere with the ability of Sellers to vote in accordance with this Agreement;
(g) make any disclosure, communication, announcement or statement regarding any intent, purpose, plan or proposal with respect to the FSC Board of Directors (the “Company Board”), the Company investment advisor or the terms and conditions of the Company’s investment advisory agreement, the FSFR Board of Directors (the “FSFR Board”), the FSFR investment advisor or the terms and conditions of FSFR’s investment advisory agreement, the Company, FSFR, or the management, policies or affairs of either the Company or FSFR, or with respect to this Agreement, that is inconsistent with the provisions of this Agreement;
(h) effect or seek to effect, offer or propose to effect, cause or participate in, or in any way assist or facilitate any other person to effect or seek, offer or propose to effect or participate in, any tender or exchange offer, merger, consolidation, acquisition, scheme, arrangement, business combination, recapitalizationrestructuring, reorganization, sale recapitalization or acquisition of assets, liquidation, dissolution, extraordinary dividend, significant share repurchase similar transaction to or other extraordinary transaction involving the Company, FSFR with Central Bancorp or either of their investment advisors, or any of their subsidiaries or joint ventures or any of their respective securities (each, an “Extraordinary Transaction”), or make any statement or disclosure regarding any intent, purpose, plan or proposal with respect to any Extraordinary Transaction or this Agreement that is inconsistent with the provisions of this Agreement, including any intent, purpose, plan or proposal that is conditioned on, or would require waiver, amendment, nullification or invalidation of, any provision of this Agreement or take any action that could require the Company or FSFR to make any public disclosure relating to any such intent, purpose, plan, proposal or condition;
(i) (i) call or seek to call or request the calling of any meeting of stockholders at either the Company or FSFR, including by written consent, (ii) otherwise seek, alone or in concert with othersothers to control or change the management, representation on, board of directors or policies of Central Bancorp or nominate any candidate to, person as a director of Central Bancorp who is not nominated by the Company Board or the FSFR Board, (iii) seek the removal of any member of the Company Board or the FSFR Board, (iv) seek, alone or in concert with othersthen incumbent directors, or support propose any Third Party in seeking, matter to replace be voted upon by the investment advisor stockholders of the Company or the investment advisor of FSFR, (v) solicit consents from the Company or FSFR stockholders or otherwise act or seek to act by written consent, (vi) conduct a referendum of the Company or FSFR stockholders or Central Bancorp; or
(vii) make a request for any stockholders list or any other books and records in Sellers’ capacity as a Company or FSFR stockholder;
(j) purchase or cause announce an intention to be purchased or otherwise acquire or agree to acquire beneficial ownership of any securities issued by the Company or FSFRdo, or any securities convertible into or exchangeable for securities issued by the Company or FSFR;
(k) sell, offer to sell, give, pledge, grant a security interest in, encumber, assign, grant any option for the sale of or otherwise transfer or dispose of (each, a “Transfer”) any securities issued by the Company and/or any securities convertible into or exchangeable for securities issued by the Company, unless any Buyer fails to timely perform each of its obligations under Section 1.2(b), Section 1.3(c) and/or Section 1.3(d)(i) of this Agreement;
(l) institute, solicit or join, as a party, or knowingly assist any other person in instituting, soliciting or joining, any litigation, arbitration or other proceeding against the Company or FSFR or any of their current or former directors or officers (including derivative actions), other than (i) litigation to enforce the provisions of this Agreement and (ii) counterclaims with respect to any proceeding initiated by, or on behalf of, a party to this Agreement or FSFR against Sellers;
(m) enter into or engage in any short sale or purchase, sale or grant of any option, warrant, derivative, convertible security, stock appreciation right or other similar right (including, without limitation, any put or call option or swap transaction) with respect to or having any measurement relating to any securities of the Companies;
(n) enter into any negotiations, arrangements, understanding or agreements (whether written or oral) with, or advise, finance, assist, seek to knowingly persuade or encourage, any Third Party to take any action or make any statement in connection with any of the foregoing, or make any investment in or enter into any arrangement or understanding with any other person that engagesothers to do, or offers or proposes to engage, in any of the foregoingactions restricted or prohibited under clauses (i) through (vi) of this Paragraph 2, or otherwise take publicly announce or cause disclose any action or make any statement inconsistent with request to be excused from any of the foregoing; or
(o) take any action challenging the validity or enforceability foregoing obligations of this AgreementParagraph 2; and At the September 30, 2003 Central Bancorp annual meeting, PL Capital agrees to vote the 154,268 shares it presently beneficially owns in favor of the nominees for election or make or in reelection as director of Central Bancorp selected by the board of directors of Central Bancorp and otherwise to support such director candidates, and to vote against the election of any way advance any request or proposal that candidates not so nominated by the Companyboard of directors of Central Bancorp. Thereafter, FSFRduring the Standstill Period, the Company Board PL Capital Parties agree to vote all shares they or any of them beneficially own of Central Bancorp in favor of the FSFR Board amendnominees for election or reelection as director of Central Bancorp selected by the board of directors of Central Bancorp and agree otherwise to support such director candidates, modify or waive and agree to vote against the election of any provision candidates not so nominated by the board of this Agreementdirectors of Central Bancorp.
Appears in 1 contract
Standstill. Effective from the date of Except as otherwise expressly provided in this Agreement (including this Section 3.1 and continuing until the later of the certification of votes for the Company 2017 Annual Meeting of Stockholders or the certification of votes for the FSFR (as defined below) 2017 Annual Meeting of Stockholders (the “Standstill Period”Section 3.2 hereto), except to the extent expressly permitted by the terms of this Agreement, none of the Sellers Shareholder or any of its Affiliates shall, and Sellers shall cause their respective controlled Affiliates not to, directly or indirectly, acting alone, in any mannera Group (other than a Group consisting solely of the Shareholder, alone JFLEI and their Affiliates) or in concert with others:
(a) solicitby purchase or otherwise, Beneficially Own, acquire, agree or knowingly encourage offer to acquire any Voting Securities or in direct or indirect rights or options to Beneficially Own Voting Securities, including any way engage in any solicitation of, any proxies or consents or become a “participant” in a “solicitation,” directly or indirectly, as voting trust certificates representing such terms are defined in Regulation 14A under the Securities Exchange Act of 1934, as amended securities (the “Exchange Act”) of proxies or consents (including, without limitation, any solicitation of consents that seeks to call a special meeting of stockholders or by encouraging or participating in any “withhold” or similar campaign), in each case, with respect other than (i) the Shares, (ii) rights, options or warrants distributed on a pro rata basis to all holders of the class or classes of securities of the Company or Fifth Street Senior Floating Rate Corp. (“FSFR”) or any securities convertible or exchangeable into or exercisable for any such securities (collectively, “securities pursuant to distribution that has been approved by at least a majority of the Companies”Independent Directors constituting the entire Independent Committee, (iii) securities acquired from the Company pursuant to a rights offer, exchange offer or similar transaction made by the Company which has been approved by at least a majority of the Independent Directors constituting the entire Independent Committee; (iv) grants of restricted Voting Securities or options to purchase Voting Securities (and the exercise thereof) to an executive officer of the Company who may be deemed to be an Affiliate of the Shareholder or JFLEI under this Agreement, which grants have been approved by at least a majority of the Independent Directors constituting the entire Independent Committee; and (v) grants of restricted CUSIP NO. 67082B 10 5 SCHEDULE 13D Page 31 of 39 Voting Securities or options to purchase Voting Securities (and the exercise thereof) to a nonemployee director of the Company who may be deemed to be an Affiliate of the Shareholder or JFLEI under this Agreement pursuant to an equity compensation plan generally available to all nonemployee directors of the Company, which grants have been approved by at least a majority of the Independent Directors constituting the entire Independent Committee);
(b) make enter, propose to enter into, or solicit any proposal for consideration by stockholders at merger or business combination, tender offer, exchange offer or similar transaction involving the Company, or purchase, acquire, propose to purchase or acquire or solicit the purchase or acquisition of any annual or special meeting portion of the stockholders business or assets of the Company if, in each case, (i) in such transaction, all holders of Voting Securities of the Company are not treated equally in terms of the dollar value at closing of the consideration, if any, to be received by such holders or FSFR(ii) such transaction is entered into with Affiliates, whether pursuant members of a Group that includes the Shareholder, JFLEI or their Affiliates or other Persons that are acting in concert with the Shareholder, JFLEI or their Affiliates to Rule 14a-8 under circumvent the Exchange Act, either such company’s constituent documents or otherwiseforegoing provisions;
(c) knowingly advisemake, encourage, support, instruct or influence any person with respect to any of the matters covered by this Section 3.1 or with respect to the voting or disposition of any securities of the Companies at any annual or special meeting of stockholders of the Company or FSFR, except in accordance with Section 3.4, or seek to do so;
(d) agree, attempt, seek or propose to deposit any securities of the Companies in any voting trust or similar arrangement, or subject any securities of the Companies to any arrangement or agreement with respect to the voting thereof, except in accordance with Section 3.4;
(e) knowingly seek or encourage any person to submit nominations in furtherance of a “contested solicitation” or take other action for the election or removal of directors with respect to the Company or FSFR, including any action that is intended to, or is reasonably likely to result in, the replacement of the investment advisor of the Company or FSFR, or a modification to the terms or conditions of either the Company’s or FSFR’s investment advisory agreement;
(f) form, join in or in any way participate in a partnership, limited partnership, syndicate or other group, including, without limitation, a group as defined under Section 13(d) of the Exchange Act (except such participation related to the reasonable unwinding of any such group currently existing as of the date of this Agreement) with any person who is not identified on Schedule I hereto (any such person, a “Third Party”), with respect to any securities of the Companies or take any other action that would interfere with the ability of Sellers to vote in accordance with this Agreement;
(g) make any disclosure, communication, announcement or statement regarding any intent, purpose, plan or proposal with respect to the FSC Board of Directors (the “Company Board”), the Company investment advisor or the terms and conditions of the Company’s investment advisory agreement, the FSFR Board of Directors (the “FSFR Board”), the FSFR investment advisor or the terms and conditions of FSFR’s investment advisory agreement, the Company, FSFR, or the management, policies or affairs of either the Company or FSFR, or with respect to this Agreement, that is inconsistent with the provisions of this Agreement;
(h) effect or seek to effect, offer or propose to effect, cause or participate in, or in any way assist or facilitate any other person to effect or seek, offer or propose to effect or participate in, any tender "solicitation" of "proxies" or exchange offer, merger, consolidation, acquisition, scheme, arrangement, business combination, recapitalization, reorganization, sale or acquisition of assets, liquidation, dissolution, extraordinary dividend, significant share repurchase or other extraordinary transaction involving become a "participant" in any "election contest" (as such terms are used in the Company, FSFR or either of their investment advisors, or any of their subsidiaries or joint ventures or any of their respective securities (each, an “Extraordinary Transaction”), or make any statement or disclosure regarding any intent, purpose, plan or proposal with respect to any Extraordinary Transaction or this Agreement that is inconsistent with proxy rules promulgated by the provisions of this Agreement, including any intent, purpose, plan or proposal that is conditioned on, or would require waiver, amendment, nullification or invalidation of, any provision of this Agreement or take any action that could require Commission under the Company or FSFR to make any public disclosure relating to any such intent, purpose, plan, proposal or condition;
(iExchange Act) (i) call or seek to call or request the calling of any meeting of stockholders at either the Company or FSFR, including by written consent, (ii) seek, alone or in concert with others, representation on, or nominate any candidate to, the Company Board or the FSFR Board, (iii) seek for the removal of any member of the Company Board or the FSFR Board, (iv) seek, alone or in concert with others, or support any Third Party in seeking, to replace the investment advisor of the Company or the investment advisor of FSFR, (v) solicit consents from the Company or FSFR stockholders or otherwise act or seek to act by written consent, (vi) conduct a referendum of the Company or FSFR stockholders or (vii) make a request for any stockholders list or any other books and records in Sellers’ capacity as a Company or FSFR stockholder;
(j) purchase or cause to be purchased or otherwise acquire or agree to acquire beneficial ownership of any securities issued by the Company or FSFR, or any securities convertible into or exchangeable for securities issued by the Company or FSFR;
(k) sell, offer to sell, give, pledge, grant a security interest in, encumber, assign, grant any option for the sale of or otherwise transfer or dispose of (each, a “Transfer”) any securities issued by the Company and/or any securities convertible into or exchangeable for securities issued by the Company, unless any Buyer fails to timely perform each of its obligations under Section 1.2(b), Section 1.3(c) and/or Section 1.3(d)(i) of this Agreement;
(l) institute, solicit or join, as a party, or knowingly assist any other person in instituting, soliciting or joining, any litigation, arbitration or other proceeding against the Company or FSFR or any of their current or former directors or officers (including derivative actions), other than (i) litigation to enforce the provisions of this Agreement and (ii) counterclaims with respect to any proceeding initiated by, or on behalf of, a party to this Agreement or FSFR against Sellers;
(m) enter into or engage in any short sale or purchase, sale or grant of any option, warrant, derivative, convertible security, stock appreciation right or other similar right (including, without limitation, any put or call option or swap transaction) with respect to or having any measurement relating to any securities of the Companies;
(n) enter into any negotiations, arrangements, understanding or agreements (whether written or oral) with, or advise, finance, assist, seek to knowingly persuade or encourage, any Third Party to take any action or make any statement in connection with any of the foregoing, or make any investment in or enter into any arrangement with any other person that engages, or offers or proposes to engage, in any of the foregoing, or otherwise take or cause any action or make any statement inconsistent with any of the foregoingIndependent Committee; or
(o) take any action challenging the validity or enforceability of this Agreement, or make or in any way advance any request or proposal that the Company, FSFR, the Company Board or the FSFR Board amend, modify or waive any provision of this Agreement.
Appears in 1 contract
Samples: Stockholders Agreement (Oao Technology Solutions Inc)
Standstill. Effective from 1. Promptly upon becoming aware of a HY Notes Default, any HY Noteholders Trustee may by notice (a "HY Notes Default Notice") in writing notify the date of this Agreement and continuing until the later Applicable Representative of the certification existence of votes for such HY Notes Default.
2. Liabilities under a Subordinated Guarantee given by a Group Company may not become payable unless and until, and the Subordinated Creditors may take Enforcement Action against a Group Company 2017 Annual Meeting of Stockholders or the certification of votes for the FSFR (as defined below) 2017 Annual Meeting of Stockholders (the “Standstill Period”), except in relation to the extent expressly permitted by the terms of this Agreement, none of the Sellers shall, Subordinated Obligations if and Sellers shall cause their respective controlled Affiliates not to, directly or indirectly, in any manner, alone or in concert with othersonly if:
(ai) solicit, or knowingly encourage or a HY Notes Default has occurred;
(ii) a HY Noteholders Trustee has served a HY Notes Default Notice on the Applicable Representative; and
(iii) the Standstill Period in any way engage in any solicitation of, any proxies or consents or become a “participant” in a “solicitation,” directly or indirectly, as relation to such terms are defined in Regulation 14A under the Securities Exchange Act of 1934, as amended (the “Exchange Act”) of proxies or consents (including, without limitation, any solicitation of consents that seeks to call a special meeting of stockholders or by encouraging or participating in any “withhold” or similar campaign), in each case, with respect to securities of the Company or Fifth Street Senior Floating Rate Corp. (“FSFR”) or any securities convertible or exchangeable into or exercisable for any such securities (collectively, “securities of the Companies”);HY Notes Default has expired; or
(b) make the Applicable Representative has (i) accelerated the amounts owed by a Group Company as a borrower under the Senior Facilities Agreement or (ii) demanded payment under any proposal for consideration guarantee granted by stockholders at any annual or special meeting of the stockholders of the a Group Company or FSFR, whether pursuant (iii) taken any action to Rule 14a-8 under the Exchange Act, either enforce any security interest or lien granted by a Group Company with a view to realisation of such company’s constituent documents security interest or otherwise;lien (which shall not include any action to perfect such security interest or lien); or
(c) knowingly advisea court or other relevant body has made an order for the liquidation, encouragemoratorium of payments, supportbankruptcy, instruct insolvent reorganisation, insolvency, examination, administration, receivership (or influence any person with respect other similar event) of a Subordinated Guarantor (or all or substantially all of its properties) or the shareholders or board of directors of a Subordinated Guarantor have passed a resolution (other than at the request or direction of a HY Noteholders Trustee or, as the case may be, the HY Noteholders) for the liquidation, dissolution or winding-up of such Subordinated Guarantor that results in the appointment of a liquidator, administrator, examiner, receiver, trustee in bankruptcy or other similar official in relation to any of the matters covered by this Section 3.1 or with respect to the voting or disposition of any securities of the Companies at any annual or special meeting of stockholders of the Company or FSFR, except in accordance with Section 3.4, or seek to do so;such Subordinated Guarantor; or
(d) agree, attempt, seek or propose there is a failure to deposit repay any securities of the Companies in any voting trust or similar arrangement, or subject any securities of the Companies to any arrangement or agreement with respect to the voting thereof, except in accordance with Section 3.4;HY Notes on their final maturity date; or
(e) knowingly seek or encourage any person to submit nominations in furtherance of a “contested solicitation” or take other action for the election or removal of directors with respect Applicable Representative has given prior consent to the Company or FSFR, including any action that is intended to, or is reasonably likely to result in, the replacement taking of the investment advisor relevant Enforcement Action.
3. Where any of the Company or FSFR, or a modification events referred to the terms or conditions of either the Company’s or FSFR’s investment advisory agreement;
(f) form, join in or in any way participate in a partnership, limited partnership, syndicate or other group, including, without limitation, a group as defined under Section 13(d) of the Exchange Act (except such participation related to the reasonable unwinding of any such group currently existing as of the date of this Agreement) with any person who is not identified on Schedule I hereto (any such person, a “Third Party”sub-clauses 12.2.2(a), with respect to any securities of the Companies or take any other action that would interfere with the ability of Sellers to vote in accordance with this Agreement;
(g12.2.2(b) make any disclosure, communication, announcement or statement regarding any intent, purpose, plan or proposal with respect to the FSC Board of Directors (the “Company Board”), the Company investment advisor or the terms and conditions of the Company’s investment advisory agreement, the FSFR Board of Directors (the “FSFR Board”), the FSFR investment advisor or the terms and conditions of FSFR’s investment advisory agreement, the Company, FSFR, or the management, policies or affairs of either the Company or FSFR, or with respect to this Agreement, that is inconsistent with the provisions of this Agreement;
(h12.2.2(d) effect or seek to effect, offer or propose to effect, cause or participate in, or in any way assist or facilitate any other person to effect or seek, offer or propose to effect or participate in, any tender or exchange offer, merger, consolidation, acquisition, scheme, arrangement, business combination, recapitalization, reorganization, sale or acquisition of assets, liquidation, dissolution, extraordinary dividend, significant share repurchase or other extraordinary transaction involving the Company, FSFR or either of their investment advisors, occurs or any of their subsidiaries or joint ventures or any of their respective securities (each, an “Extraordinary Transaction”), or make any statement or disclosure regarding any intent, purpose, plan or proposal with respect to any Extraordinary Transaction or this Agreement that is inconsistent with the provisions of this Agreement, including any intent, purpose, plan or proposal that is conditioned on, or would require waiver, amendment, nullification or invalidation of, any provision of this Agreement or take any action that could require the Company or FSFR to make any public disclosure relating to any such intent, purpose, plan, proposal or condition;
(i) (i) call or seek to call or request the calling of any meeting of stockholders at either the Company or FSFR, including by written consent, (ii) seek, alone or events in concert with others, representation on, or nominate any candidate to, the Company Board or the FSFR Board, (iii) seek the removal of any member of the Company Board or the FSFR Board, (iv) seek, alone or in concert with others, or support any Third Party in seeking, to replace the investment advisor of the Company or the investment advisor of FSFR, (v) solicit consents from the Company or FSFR stockholders or otherwise act or seek to act by written consent, (vi) conduct a referendum of the Company or FSFR stockholders or (vii) make a request for any stockholders list or any other books and records in Sellers’ capacity as a Company or FSFR stockholder;
(j) purchase or cause to be purchased or otherwise acquire or agree to acquire beneficial ownership of any securities issued by the Company or FSFR, or any securities convertible into or exchangeable for securities issued by the Company or FSFR;
(k) sell, offer to sell, give, pledge, grant a security interest in, encumber, assign, grant any option for the sale of or otherwise transfer or dispose of (each, a “Transfer”) any securities issued by the Company and/or any securities convertible into or exchangeable for securities issued by the Company, unless any Buyer fails to timely perform each of its obligations under Section 1.2(b), Section 1.3(c) and/or Section 1.3(d)(i) of this Agreement;
(l) institute, solicit or join, as a party, or knowingly assist any other person in instituting, soliciting or joining, any litigation, arbitration or other proceeding against the Company or FSFR or any of their current or former directors or officers (including derivative actions), other than (i) litigation to enforce the provisions of this Agreement and (ii) counterclaims with respect to any proceeding initiated by, or on behalf of, a party to this Agreement or FSFR against Sellers;
(m) enter into or engage in any short sale or purchase, sale or grant of any option, warrant, derivative, convertible security, stock appreciation right or other similar right (including, without limitation, any put or call option or swap transaction) with respect to or having any measurement relating to any securities of the Companies;
(n) enter into any negotiations, arrangements, understanding or agreements (whether written or oral) with, or advise, finance, assist, seek to knowingly persuade or encourage, any Third Party to take any action or make any statement in connection with any of the foregoing, or make any investment in or enter into any arrangement with any other person that engages, or offers or proposes to engage, in any of the foregoing, or otherwise take or cause any action or make any statement inconsistent with any of the foregoing; or
(o) take any action challenging the validity or enforceability of this Agreement, or make or in any way advance any request or proposal that the Company, FSFR, the Company Board or the FSFR Board amend, modify or waive any provision of this Agreement.sub-clause 12.2.2
Appears in 1 contract
Samples: Intercreditor Agreement (Reynolds Group Holdings LTD)
Standstill. Effective from the date of this Agreement and continuing until the later None of the certification of votes for the Company 2017 Annual Meeting of Stockholders or the certification of votes for the FSFR Shareholders may (as defined below) 2017 Annual Meeting of Stockholders (the “Standstill Period”and each Shareholder shall cause its Affiliates that are controlled by it, not to), except to without the extent expressly permitted by the terms of this Agreement, none prior written consent of the Sellers shallBoard, and Sellers shall cause their respective controlled Affiliates not todirectly or indirectly:
(a) publicly propose that any Shareholder or any Affiliate of any Shareholder enter into, directly or indirectly, in any manner, alone merger or in concert with others:
(a) solicit, other business combination involving the Company or knowingly encourage or in any way engage in any solicitation of, any proxies or consents or become a “participant” in a “solicitation,” propose to purchase directly or indirectly, as such terms are defined in Regulation 14A under a material portion of the Securities Exchange Act of 1934, as amended (the “Exchange Act”) of proxies equity or consents (including, without limitation, any solicitation of consents that seeks to call a special meeting of stockholders or by encouraging or participating in any “withhold” or similar campaign), in each case, with respect to securities assets of the Company or Fifth Street Senior Floating Rate Corp. (“FSFR”) any of its Subsidiaries, or any securities convertible or exchangeable into or exercisable for make any such securities (collectively, “securities of proposal privately in a manner or in terms such that it would reasonably be expected to require the Companies”)Company to make a public announcement regarding such proposal;
(b) make attempt to, or participate in an attempt to, solicit the support of other shareholders of the Company for any proposal for consideration by stockholders resolution to be considered at any annual or special meeting of the stockholders shareholders of the Company or FSFR, whether pursuant to Rule 14a-8 under which has not been proposed by the Exchange Act, either such company’s constituent documents or otherwiseBoard;
(c) knowingly adviseform, encourage, support, instruct join or influence any person participate in or encourage the formation of a "group" (within the meaning of Section 13(d)(3) of the Exchange Act) with respect to any Voting Securities of the matters covered Company, other than a group consisting solely of Shareholders and the Affiliates controlled by this Section 3.1 or them and other persons with respect to whose Premier shares any Shareholder has beneficial ownership on the voting or disposition of any securities of the Companies at any annual or special meeting of stockholders of the Company or FSFR, except in accordance with Section 3.4, or seek to do so;date hereof.
(d) agree, attempt, seek or propose to deposit any securities Restricted Securities of the Companies in any Company into a voting trust or similar arrangement, or subject any securities of the Companies such Restricted Securities to any arrangement or agreement with respect to the voting thereof, other than (x) any such trust, arrangement or agreement (i) the only parties to, or beneficiaries of, which are Shareholders or any Affiliates controlled by them and (ii) the terms of which do not require or expressly permit any party thereto to act in a manner inconsistent with this Agreement;
(e) except in accordance with Section 3.45.1, seek election to or seek to place a representative on the Board or seek the removal or the non- reappointment of any member of the Board;
(ef) knowingly requisition or seek to have requisitioned or encourage called any meeting of the shareholders of the Company or requisition or seek to have requisitioned the proposing of any resolution at any meeting of the shareholders of the Company;
(g) (A) solicit, seek to effect, negotiate with or provide non-public information to any other person with respect to, (B) make any statement or proposal, whether written or oral, to submit nominations in furtherance the Board or any director or officer of the Company with respect to, or (C) otherwise make any public announcement or proposal whatsoever with respect to, any form of business combination transaction (with any person) involving a change of Control of the Company or the acquisition of a “contested solicitation” substantial portion of the equity securities or take other action for assets of the election Company or removal any of directors its Subsidiaries, including a merger, consolidation, tender offer, Takeover Offer, exchange offer or liquidation of the Company's assets, or any scheme of arrangement, restructuring, recapitalization or similar transaction with respect to the Company or FSFRany of its Subsidiaries; provided, including any action however, that is intended to, or is reasonably likely to result in, the replacement of the investment advisor of the Company or FSFR, or a modification to the terms or conditions of either the Company’s or FSFR’s investment advisory agreement;
foregoing shall not (fx) form, join in or in any way participate in a partnership, limited partnership, syndicate or other group, including, without limitation, a group as defined under Section 13(d) of the Exchange Act (except such participation related to the reasonable unwinding of any such group currently existing as of the date of this Agreement) with any person who is not identified on Schedule I hereto (any such person, a “Third Party”), with respect apply to any securities of discussion between or among the Companies or take any other action that would interfere with the ability of Sellers to vote in accordance with this Agreement;
(g) make any disclosure, communication, announcement or statement regarding any intent, purpose, plan or proposal with respect to the FSC Board of Directors (the “Company Board”), the Company investment advisor or the terms and conditions of the Company’s investment advisory agreement, the FSFR Board of Directors (the “FSFR Board”), the FSFR investment advisor or the terms and conditions of FSFR’s investment advisory agreement, the Company, FSFR, or the management, policies or affairs of either the Company or FSFR, or with respect to this Agreement, that is inconsistent with the provisions of this Agreement;
(h) effect or seek to effect, offer or propose to effect, cause or participate in, or in any way assist or facilitate any other person to effect or seek, offer or propose to effect or participate in, any tender or exchange offer, merger, consolidation, acquisition, scheme, arrangement, business combination, recapitalization, reorganization, sale or acquisition of assets, liquidation, dissolution, extraordinary dividend, significant share repurchase or other extraordinary transaction involving the Company, FSFR or either of their investment advisors, or any of their subsidiaries or joint ventures Shareholders or any of their respective securities agents or representatives or (eachy) in the case of clause (B) above, an “Extraordinary Transaction”)be interpreted to limit the ability of any Shareholder, or any designee of any Shareholder, on the Board to make any such statement or disclosure regarding proposal or to discuss any intent, purpose, plan or such proposal with respect to any Extraordinary Transaction officer or this Agreement that is inconsistent with the provisions of this Agreement, including any intent, purpose, plan or proposal that is conditioned ondirector of, or would require waiveradvisor to, amendmentthe Company or advisor to the Board or to the Board itself unless, nullification or invalidation ofin either case, any provision of this Agreement or take any action that it could reasonably be expected to require the Company or FSFR to make any a public disclosure relating to any announcement regarding such intentdiscussion, purpose, plan, proposal statement or conditionproposal;
(i) enter into (or remain a party to) any agreement or understanding (whether formal or informal) which provides for two or more of the parties thereto to co-operate with a view to obtaining or consolidating control of the Company through the acquisition by any of them of any beneficial ownership in Restricted Securities; (ii) enter into any agreement, arrangement, understanding or transaction or do or omit to do anything as a result of which it (either alone or with any other person) will become obliged or required (whether under the Takeover Code or otherwise) to make any Takeover Offer; (iii) encourage or co-operate or assist or enter into any agreement or arrangement with any person relating to or connected with the making of a Takeover Offer; (iv) make, accept or reject any Takeover Offer, or vote on any resolution of the Company concerning a Takeover Offer, other than in accordance with the recommendation of the Board; (v) sell or transfer, or agree to sell or transfer, any Restricted Securities to (A) the offeror of any Takeover Offer, or any person acting in concert with him, or (B) any person whom the Shareholder knows intends to, or whom the Shareholder has reason to believe might, make a Takeover Offer or anyone whom the Shareholder knows to, or has reason to believe might, be acting in concert with such a person;
(i) call or seek to call or request the calling of any meeting of stockholders at either the Company or FSFR, including by written consent, (ii) seekotherwise act, alone or in concert with others, representation on, to seek to control or nominate any candidate to, influence the Company Board management or the FSFR Board, (iii) seek the removal of any member policies of the Company Board (except for (A) to the extent permitted hereby, voting as a holder of Restricted Securities and (B) for actions taken as a director or the FSFR Board, (iv) seek, alone or in concert with others, or support any Third Party in seeking, to replace the investment advisor officer of the Company or the investment advisor of FSFR, (v) solicit consents from the Company or FSFR stockholders or otherwise act or seek to act by written consent, (vi) conduct a referendum of the Company or FSFR stockholders or (vii) make a request for any stockholders list or any other books and records in Sellers’ capacity as a Company or FSFR stockholderCompany);
(j) purchase publicly disclose any intention, plan or cause arrangement inconsistent with the foregoing, or make any such disclosure privately if it could reasonably be expected to be purchased or otherwise acquire or agree to acquire beneficial ownership of any securities issued by require the Company to make a public announcement regarding such intention, plan or FSFR, or any securities convertible into or exchangeable for securities issued by the Company or FSFR;arrangement; or
(k) selladvise, offer to sell, give, pledge, grant a security interest in, encumber, assign, grant any option assist (including by knowingly providing or arranging financing for the sale of or otherwise transfer or dispose of (each, a “Transfer”that purpose) any securities issued by the Company and/or any securities convertible into or exchangeable for securities issued by the Company, unless any Buyer fails to timely perform each of its obligations under Section 1.2(b), Section 1.3(c) and/or Section 1.3(d)(i) of this Agreement;
(l) institute, solicit or join, as a party, or knowingly assist encourage any other person in instituting, soliciting or joining, any litigation, arbitration or other proceeding against the Company or FSFR or any of their current or former directors or officers (including derivative actions), other than (i) litigation to enforce the provisions of this Agreement and (ii) counterclaims with respect to any proceeding initiated by, or on behalf of, a party to this Agreement or FSFR against Sellers;
(m) enter into or engage in any short sale or purchase, sale or grant of any option, warrant, derivative, convertible security, stock appreciation right or other similar right (including, without limitation, any put or call option or swap transaction) with respect to or having any measurement relating to any securities of the Companies;
(n) enter into any negotiations, arrangements, understanding or agreements (whether written or oral) with, or advise, finance, assist, seek to knowingly persuade or encourage, any Third Party to take any action or make any statement in connection with any of the foregoing, or make any investment in or enter into any arrangement with any other person that engages, or offers or proposes to engage, in any . For the avoidance of doubt nothing herein shall prevent the Shareholders who are directors of the foregoingCompany from engaging in discussions with other directors, or otherwise take or cause which discussions relate to any action or make any statement inconsistent with any of the foregoing; or
(o) take any action challenging the validity or enforceability of this Agreement, or make or in any way advance any request or proposal that the Company, FSFR, the Company Board or the FSFR Board amend, modify or waive any provision of this Agreementmatters which are not initiated by such Shareholders.
Appears in 1 contract
Standstill. Effective from The PL Capital Parties each agree that, after the date of this Agreement hereof and continuing until September 30, 2010 (the later of the certification of votes for the Company 2017 Annual Meeting of Stockholders "Standstill Period"), they and their affiliates or the certification of votes for the FSFR associates (as defined below) 2017 Annual Meeting of Stockholders (the “Standstill Period”), except in Rule 12b-2 promulgated pursuant to the extent expressly permitted by the terms of this Agreement, none of the Sellers shall, and Sellers shall cause their respective controlled Affiliates not to, directly or indirectly, in any manner, alone or in concert with others:
(a) solicit, or knowingly encourage or in any way engage in any solicitation of, any proxies or consents or become a “participant” in a “solicitation,” directly or indirectly, as such terms are defined in Regulation 14A under the Securities Exchange Act of 1934, as amended (the “"Exchange Act”")) of proxies will not (and they will not assist or consents (includingencourage others to), directly or indirectly, in any manner, without limitationprior written approval of the Board of Directors of BCSB Bancorp:
(i) acquire, offer to acquire, solicit an offer to sell or agree to acquire directly or indirectly, alone or in concert with others, by purchase, gift or otherwise, any solicitation direct or indirect beneficial ownership (within the meaning of consents that seeks to call a special meeting of stockholders Rule 13d-3 under the Exchange Act) or by encouraging any direct or participating indirect interest in any “withhold” securities or similar campaigndirect or indirect rights, warrants or options to acquire, or securities convertible into or exchangeable for (collectively, an "Acquisition"), any securities of BCSB Bancorp ("Securities"), provided that the PL Capital Parties may sell shares without the prior approval of the Board of Directors of BCSB Bancorp subject to the Right of First Refusal in each caseParagraph 5 of this Agreement;
(ii) make, or in any way participate in, directly or indirectly, alone or in concert with others, any "solicitation" of "proxies" to vote (as such terms are used in the proxy rules of the Securities and Exchange Commission promulgated pursuant to Section 14 of the Exchange Act) or seek to advise or influence in any manner whatsoever any person with respect to the voting of any voting securities of BCSB Bancorp;
(iii) form, join or in any way participate in a "group" within the Company meaning of Section 13(d)(3) of the Exchange Act with respect to any voting securities of BCSB Bancorp;
(iv) acquire, offer to acquire or Fifth Street Senior Floating Rate Corp. agree to acquire, directly or indirectly, alone or in concert with others, by purchase, exchange or otherwise, (“FSFR”a) any of the assets, tangible and intangible, of BCSB Bancorp or (b) direct or indirect rights, warrants or options to acquire any assets of BCSB Bancorp;
(v) arrange, or in any way participate, directly or indirectly, in any financing (except for margin loan financing for shares presently beneficially owned) for the purchase of any securities or securities convertible or exchangeable into or exercisable for any such securities (collectively, “securities or assets of the Companies”)BCSB Bancorp;
(bvi) make otherwise act, alone or in concert with others, to seek to offer to BCSB Bancorp or any proposal of its stockholders any business combination, restructuring, recapitalization or similar transaction to or with BCSB Bancorp or otherwise seek, alone or in concert with others to control or change the management, Board of Directors or policies of BCSB Bancorp or nominate any person as a director of BCSB Bancorp who is not nominated by the then incumbent directors (provided that in the event there is a vacancy on the BCSB Bancorp Board of Directors, the PL Capital Parties may submit suggestions for nominees to the nominating committee of the Board of Directors for its consideration pursuant to the policies adopted by stockholders at the nominating committee of the Board of Directors), or propose any annual or special meeting of matter to be voted upon by the stockholders of BCSB Bancorp; or
(vii) announce an intention to do, or enter into any arrangement or understanding with others to do, any of the Company actions restricted or FSFRprohibited under clauses (i) through (vi) of this Paragraph 2, whether or publicly announce or disclose any request to be excused from any of the foregoing obligations of this Paragraph 2. Notwithstanding any other provision of this Paragraph 2, the restrictions on the acquisition of securities contained in clause (i) of Paragraph 2 shall be from the date of this Agreement until the date immediately following the 2009 annual meeting of stockholders and any adjournment thereof, provided that in no event during the Standstill Period shall the PL Capital Parties acquire in the aggregate beneficial ownership of more than 9.9% of any class of voting Securities. At BCSB Bancorp's 2009 annual meeting of stockholders, BCSB Bancorp intends to submit for a vote a proposal to approve an equity incentive plan that would allow for the grant of stock options and stock awards (the "2009 Equity Incentive Plan"). At such 2009 annual meeting of stockholders, the PL Capital Parties hereby agree to vote all the BCSB Bancorp shares they beneficially owns in favor of the 2009 Equity Incentive Plan. In addition, at any BCSB Bancorp annual meeting of stockholders during the Standstill Period, the PL Capital Parties agree (i) to vote all the BCSB Bancorp shares they beneficially own in favor of the nominees for election or reelection as directors of BCSB Bancorp selected by the Board of Directors of BCSB Bancorp or the nominating committee of such Board of Directors and otherwise to support such director candidates, and (ii) with respect to any other proposal submitted by any BCSB Bancorp stockholder to a vote of the BCSB Bancorp stockholders, to vote all the BCSB Bancorp shares they beneficially own in accordance with the recommendation of the BCSB Bancorp Board of Directors with respect to any such stockholder proposal. Upon the execution of this Agreement by the PL Capital Parties and BCSB Bancorp, the PL Capital Parties shall be deemed to have withdrawn their stockholder proposal submitted to BCSB Bancorp by letter dated December 10, 2008 pursuant to Rule 14a-8 under the Exchange Act, either such company’s constituent documents or otherwise;
(c) knowingly advise, encourage, support, instruct or influence any person with respect to any of the matters covered by this Section 3.1 or with respect to the voting or disposition of any securities of the Companies at any annual or special meeting of stockholders of the Company or FSFR, except in accordance with Section 3.4, or seek to do so;
(d) agree, attempt, seek or propose to deposit any securities of the Companies in any voting trust or similar arrangement, or subject any securities of the Companies to any arrangement or agreement with respect to the voting thereof, except in accordance with Section 3.4;
(e) knowingly seek or encourage any person to submit nominations in furtherance of a “contested solicitation” or take other action for the election or removal of directors with respect to the Company or FSFR, including any action that is intended to, or is reasonably likely to result in, the replacement of the investment advisor of the Company or FSFR, or a modification to the terms or conditions of either the Company’s or FSFR’s investment advisory agreement;
(f) form, join in or in any way participate in a partnership, limited partnership, syndicate or other group, including, without limitation, a group as defined under Section 13(d) of the Exchange Act (except such participation related to the reasonable unwinding of any such group currently existing as of the date of this Agreement) with any person who is not identified on Schedule I hereto (any such person, a “Third Party”), with respect to any securities of the Companies or take any other action that would interfere with the ability of Sellers to vote in accordance with this Agreement;
(g) make any disclosure, communication, announcement or statement regarding any intent, purpose, plan or proposal with respect to the FSC Board of Directors (the “Company Board”), the Company investment advisor or the terms and conditions of the Company’s investment advisory agreement, the FSFR Board of Directors (the “FSFR Board”), the FSFR investment advisor or the terms and conditions of FSFR’s investment advisory agreement, the Company, FSFR, or the management, policies or affairs of either the Company or FSFR, or with respect to this Agreement, that is inconsistent with the provisions of this Agreement;
(h) effect or seek to effect, offer or propose to effect, cause or participate in, or in any way assist or facilitate any other person to effect or seek, offer or propose to effect or participate in, any tender or exchange offer, merger, consolidation, acquisition, scheme, arrangement, business combination, recapitalization, reorganization, sale or acquisition of assets, liquidation, dissolution, extraordinary dividend, significant share repurchase or other extraordinary transaction involving the Company, FSFR or either of their investment advisors, or any of their subsidiaries or joint ventures or any of their respective securities (each, an “Extraordinary Transaction”), or make any statement or disclosure regarding any intent, purpose, plan or proposal with respect to any Extraordinary Transaction or this Agreement that is inconsistent with the provisions of this Agreement, including any intent, purpose, plan or proposal that is conditioned on, or would require waiver, amendment, nullification or invalidation of, any provision of this Agreement or take any action that could require the Company or FSFR to make any public disclosure relating to any such intent, purpose, plan, proposal or condition;
(i) (i) call or seek to call or request the calling of any meeting of stockholders at either the Company or FSFR, including by written consent, (ii) seek, alone or in concert with others, representation on, or nominate any candidate to, the Company Board or the FSFR Board, (iii) seek the removal of any member of the Company Board or the FSFR Board, (iv) seek, alone or in concert with others, or support any Third Party in seeking, to replace the investment advisor of the Company or the investment advisor of FSFR, (v) solicit consents from the Company or FSFR stockholders or otherwise act or seek to act by written consent, (vi) conduct a referendum of the Company or FSFR stockholders or (vii) make a request for any stockholders list or any other books and records in Sellers’ capacity as a Company or FSFR stockholder;
(j) purchase or cause to be purchased or otherwise acquire or agree to acquire beneficial ownership of any securities issued by the Company or FSFR, or any securities convertible into or exchangeable for securities issued by the Company or FSFR;
(k) sell, offer to sell, give, pledge, grant a security interest in, encumber, assign, grant any option for the sale of or otherwise transfer or dispose of (each, a “Transfer”) any securities issued by the Company and/or any securities convertible into or exchangeable for securities issued by the Company, unless any Buyer fails to timely perform each of its obligations under Section 1.2(b), Section 1.3(c) and/or Section 1.3(d)(i) of this Agreement;
(l) institute, solicit or join, as a party, or knowingly assist any other person in instituting, soliciting or joining, any litigation, arbitration or other proceeding against the Company or FSFR or any of their current or former directors or officers (including derivative actions), other than (i) litigation to enforce the provisions of this Agreement and (ii) counterclaims with respect to any proceeding initiated by, or on behalf of, a party to this Agreement or FSFR against Sellers;
(m) enter into or engage in any short sale or purchase, sale or grant of any option, warrant, derivative, convertible security, stock appreciation right or other similar right (including, without limitation, any put or call option or swap transaction) with respect to or having any measurement relating to any securities of the Companies;
(n) enter into any negotiations, arrangements, understanding or agreements (whether written or oral) with, or advise, finance, assist, seek to knowingly persuade or encourage, any Third Party to take any action or make any statement in connection with any of the foregoing, or make any investment in or enter into any arrangement with any other person that engages, or offers or proposes to engage, in any of the foregoing, or otherwise take or cause any action or make any statement inconsistent with any of the foregoing; or
(o) take any action challenging the validity or enforceability of this Agreement, or make or in any way advance any request or proposal that the Company, FSFR, the Company Board or the FSFR Board amend, modify or waive any provision of this Agreement.
Appears in 1 contract
Standstill. Effective from Ford agrees that for a period of three years following the date hereof, neither Ford nor any of this Agreement and continuing until its Affiliates will, without the later Company's prior written consent:
(i) acquire, agree to acquire or offer to acquire beneficial ownership of any securities of the certification of votes for the Company 2017 Annual Meeting of Stockholders (or the certification of votes for the FSFR (as defined below) 2017 Annual Meeting of Stockholders (the “Standstill Period”), except options or other rights to the extent expressly permitted by the terms of this Agreement, none acquire any securities of the Sellers shallCompany) other than Registrable Securities; provided that the foregoing limitation shall not prohibit the acquisition of securities issued as dividends or as a result of stock splits and similar reclassifications or received in a consolidation, and Sellers shall cause their respective controlled Affiliates not tomerger or other business combination in respect of Registrable Securities held by such Persons at the time of such dividend, split, reclassification, consolidation, merger or business combination;
(ii) make or in any way participate in, directly or indirectly, in any manner, alone or in concert with others:
(a) solicit, or knowingly encourage or in any way engage in any solicitation of, any proxies or consents or become a “participant” in a “"solicitation,” directly or indirectly, " of "proxies" (as such terms are defined used in Regulation 14A under the proxy rules of the U.S. Securities and Exchange Act Commission promulgated pursuant to Section 14 of 1934, as amended (the “Exchange 1934 Act”) of proxies or consents (including, without limitation, to vote any solicitation of consents that seeks to call a special meeting of stockholders or by encouraging or participating in any “withhold” or similar campaign), in each case, with respect to voting securities of the Company or Fifth Street Senior Floating Rate Corp. (“FSFR”) or any securities convertible or exchangeable into or exercisable for any such securities (collectively, “securities of the Companies”)Company;
(b) make any proposal for consideration by stockholders at any annual or special meeting of the stockholders of the Company or FSFR, whether pursuant to Rule 14a-8 under the Exchange Act, either such company’s constituent documents or otherwise;
(c) knowingly advise, encourage, support, instruct or influence any person with respect to any of the matters covered by this Section 3.1 or with respect to the voting or disposition of any securities of the Companies at any annual or special meeting of stockholders of the Company or FSFR, except in accordance with Section 3.4, or seek to do so;
(d) agree, attempt, seek or propose to deposit any securities of the Companies in any voting trust or similar arrangement, or subject any securities of the Companies to any arrangement or agreement with respect to the voting thereof, except in accordance with Section 3.4;
(e) knowingly seek or encourage any person to submit nominations in furtherance of a “contested solicitation” or take other action for the election or removal of directors with respect to the Company or FSFR, including any action that is intended to, or is reasonably likely to result in, the replacement of the investment advisor of the Company or FSFR, or a modification to the terms or conditions of either the Company’s or FSFR’s investment advisory agreement;
(fxxx) form, join in or in any way participate in a partnership, limited partnership, syndicate or other "group, including, without limitation, a group as defined under " within the meaning of Section 13(d13(d)(3) of the Exchange 1934 Act (except such participation related to the reasonable unwinding of any such group currently existing as of the date of this Agreement) with any person who is not identified on Schedule I hereto (any such person, a “Third Party”), with respect to any voting securities of the Companies or take any other action that would interfere with the ability of Sellers to vote in accordance with this AgreementCompany;
(giv) make any disclosureotherwise act, communicationalone or in concert with others, announcement or statement regarding any intent, purpose, plan or proposal with respect to the FSC Board of Directors (the “Company Board”), the Company investment advisor or the terms and conditions of the Company’s investment advisory agreement, the FSFR Board of Directors (the “FSFR Board”), the FSFR investment advisor or the terms and conditions of FSFR’s investment advisory agreement, the Company, FSFR, or the management, policies or affairs of either seek to propose to the Company or FSFR, or with respect to this Agreement, that is inconsistent with the provisions any of this Agreement;
(h) effect or seek to effect, offer or propose to effect, cause or participate in, or in its stockholders any way assist or facilitate any other person to effect or seek, offer or propose to effect or participate in, any tender or exchange offer, merger, consolidation, acquisition, scheme, arrangementshare exchange, business combination, recapitalization, reorganization, sale of all or acquisition of substantially all assets, liquidation, dissolution, extraordinary dividend, significant share repurchase recapitalization or other extraordinary similar transaction involving the Company, FSFR to or either of their investment advisors, or any of their subsidiaries or joint ventures or any of their respective securities (each, an “Extraordinary Transaction”), or make any statement or disclosure regarding any intent, purpose, plan or proposal with respect to any Extraordinary Transaction or this Agreement that is inconsistent with the provisions of this Agreement, including any intent, purpose, plan or proposal that is conditioned on, or would require waiver, amendment, nullification or invalidation of, any provision of this Agreement or take any action that could require the Company or FSFR to make any public disclosure relating to any such intent, purpose, plan, proposal or condition;
(i) (i) call or seek to call or request the calling of any meeting of stockholders at either the Company or FSFR, including by written consent, (ii) otherwise seek, alone or in concert with others, representation onto control, or nominate any candidate tochange the management, the Company Board of Directors or the FSFR Board, (iii) seek the removal of any member of the Company Board or the FSFR Board, (iv) seek, alone or in concert with others, or support any Third Party in seeking, to replace the investment advisor policies of the Company or nominate any person as a director who is not nominated by the investment advisor then incumbent directors, or propose any matter to be voted upon by the stockholders of FSFR, the Company;
(v) solicit consents from the Company make any request or FSFR stockholders proposal to amend, waive or otherwise act or seek to act by written consent, terminate any provision of this Article 4; or
(vi) conduct take any action that would reasonably be expected to result in the Company having to make a referendum public announcement regarding any of the Company or FSFR stockholders or matters referred to in clauses (viii) make a request for any stockholders list or any other books and records in Sellers’ capacity as a Company or FSFR stockholder;
through (j) purchase or cause to be purchased or otherwise acquire or agree to acquire beneficial ownership of any securities issued by the Company or FSFR, or any securities convertible into or exchangeable for securities issued by the Company or FSFR;
(k) sell, offer to sell, give, pledge, grant a security interest in, encumber, assign, grant any option for the sale of or otherwise transfer or dispose of (each, a “Transfer”) any securities issued by the Company and/or any securities convertible into or exchangeable for securities issued by the Company, unless any Buyer fails to timely perform each of its obligations under Section 1.2(b), Section 1.3(c) and/or Section 1.3(d)(iv) of this Agreement;
(l) institute, solicit or join, as a partySection 4.01, or knowingly assist any other person in institutingannounce an intention to do, soliciting or joining, any litigation, arbitration or other proceeding against the Company or FSFR or any of their current or former directors or officers (including derivative actions), other than (i) litigation to enforce the provisions of this Agreement and (ii) counterclaims with respect to any proceeding initiated by, or on behalf of, a party to this Agreement or FSFR against Sellers;
(m) enter into or engage in any short sale or purchase, sale or grant of any option, warrant, derivative, convertible security, stock appreciation right or other similar right (including, without limitation, any put or call option or swap transaction) with respect to or having any measurement relating to any securities of the Companies;
(n) enter into any negotiations, arrangements, understanding or agreements (whether written or oral) with, or advise, finance, assist, seek to knowingly persuade or encourage, any Third Party to take any action or make any statement in connection with any of the foregoing, or make any investment in or enter into any arrangement or understanding with any other person that engagesothers to do, or offers or proposes to engage, in any of the foregoing, actions restricted or otherwise take or cause any action or make any statement inconsistent with any of the foregoing; or
prohibited under clauses (oi) take any action challenging the validity or enforceability through (v) of this Agreement, or make or in any way advance any request or proposal that the Company, FSFR, the Company Board or the FSFR Board amend, modify or waive any provision of this AgreementSection 4.01.
Appears in 1 contract
Standstill. Effective from the date of this Agreement and continuing until the later of the certification of votes for the Company 2017 Annual Meeting of Stockholders or the certification of votes for the FSFR (as defined belowa) 2017 Annual Meeting of Stockholders (the “Standstill Period”)The Henschels agree, except subject to the extent expressly permitted by the terms of this Agreement, none of that for the Sellers shallStandstill Period, and Sellers they shall cause their respective controlled Affiliates not to, directly or indirectly, in any manner, alone or in concert with othersnot:
(ai) solicitfile or join in the filing of any involuntary petition in bankruptcy with respect to the Company or its subsidiaries, or knowingly encourage initiate or participate in any way engage similar proceedings for the benefit of creditors, including any proceeding for the appointment of a trustee, receiver, conservator or liquidator of the Company or its subsidiaries or any portion of its assets;
(ii) seek to collect or enforce by litigation or otherwise, the Note Obligations;
(iii) make any demands for payment in any solicitation respect of, or collateral to secure, the Notes or the Note Obligations;
(iv) declare a default or event of default under, or exercise or enforce any proxies right or consents remedy under, or become a “participant” accelerate the maturity of the Notes or any Note Obligation; or
(v) seek to attach, sequester or otherwise proceed against any of the assets of the Company.
(b) The Standstill Period may be terminated by the Henschels by written notice to the Company, the Facility Lenders and each of the other creditors listed on Schedule I hereto who currently hold security interests in a “solicitation,” directly or indirectly, as such terms are defined in Regulation 14A under assets of the Securities Exchange Act of 1934, as amended Company (the “Exchange Act”"Other Secured Creditors") at the notice addresses set forth on Schedule I hereto upon the occurrence of proxies any of the following:
(i) a failure by the Company to make to the Henschels any required payment in respect of the Notes when due pursuant to Section 7 hereof, or consents a failure by the Company to make payments to the Facility Lenders in accordance with the terms of the Other Intercreditor Agreements (including, without limitation, any solicitation of consents that seeks to call a special meeting of stockholders or by encouraging or participating in any “withhold” or similar campaignas defined below), in each case, with respect to securities of the Company or Fifth Street Senior Floating Rate Corp. (“FSFR”) or any securities convertible or exchangeable into or exercisable which failure continues unremedied for any such securities (collectively, “securities of the Companies”)five days;
(bii) make any proposal for consideration intentional fraud or misrepresentation by stockholders at the Company;
(iii) immediately in the event the Facility Lenders or any annual or special meeting of the stockholders Other Secured Creditors takes any of the Company actions described in Section 1(a) of the Other Intercreditor Agreements or FSFR, whether terminates the "standstill period" (as such term is defined in each Other Intercreditor Agreement) pursuant to Rule 14a-8 under Section 1(b) of any Other Intercreditor Agreement, in each case whether or not it shall have given notice of termination of the Exchange Act, either such company’s constituent documents or otherwisestandstill period;
(c) knowingly advise, encourage, support, instruct The Standstill Period shall terminate automatically without notice or influence other action by any person with respect to the Henschels or the Facility Lenders upon the occurrence of any of the matters covered by this Section 3.1 or with respect to the voting or disposition of any securities of the Companies at any annual or special meeting of stockholders of the Company or FSFR, except in accordance with Section 3.4, or seek to do so;
(d) agree, attempt, seek or propose to deposit any securities of the Companies in any voting trust or similar arrangement, or subject any securities of the Companies to any arrangement or agreement with respect to the voting thereof, except in accordance with Section 3.4;
(e) knowingly seek or encourage any person to submit nominations in furtherance of a “contested solicitation” or take other action for the election or removal of directors with respect to the Company or FSFR, including any action that is intended to, or is reasonably likely to result in, the replacement of the investment advisor of the Company or FSFR, or a modification to the terms or conditions of either the Company’s or FSFR’s investment advisory agreement;
(f) form, join in or in any way participate in a partnership, limited partnership, syndicate or other group, including, without limitation, a group as defined under Section 13(d) of the Exchange Act (except such participation related to the reasonable unwinding of any such group currently existing as of the date of this Agreement) with any person who is not identified on Schedule I hereto (any such person, a “Third Party”), with respect to any securities of the Companies or take any other action that would interfere with the ability of Sellers to vote in accordance with this Agreement;
(g) make any disclosure, communication, announcement or statement regarding any intent, purpose, plan or proposal with respect to the FSC Board of Directors (the “Company Board”), the Company investment advisor or the terms and conditions of the Company’s investment advisory agreement, the FSFR Board of Directors (the “FSFR Board”), the FSFR investment advisor or the terms and conditions of FSFR’s investment advisory agreement, the Company, FSFR, or the management, policies or affairs of either the Company or FSFR, or with respect to this Agreement, that is inconsistent with the provisions of this Agreement;
(h) effect or seek to effect, offer or propose to effect, cause or participate in, or in any way assist or facilitate any other person to effect or seek, offer or propose to effect or participate in, any tender or exchange offer, merger, consolidation, acquisition, scheme, arrangement, business combination, recapitalization, reorganization, sale or acquisition of assets, liquidation, dissolution, extraordinary dividend, significant share repurchase or other extraordinary transaction involving the Company, FSFR or either of their investment advisors, or any of their subsidiaries or joint ventures or any of their respective securities (each, an “Extraordinary Transaction”), or make any statement or disclosure regarding any intent, purpose, plan or proposal with respect to any Extraordinary Transaction or this Agreement that is inconsistent with the provisions of this Agreement, including any intent, purpose, plan or proposal that is conditioned on, or would require waiver, amendment, nullification or invalidation of, any provision of this Agreement or take any action that could require the Company or FSFR to make any public disclosure relating to any such intent, purpose, plan, proposal or condition;following:
(i) (i) call or seek to call or request the calling of any meeting of stockholders at either the Company shall consent to the appointment of or FSFRtaking possession by a receiver, including by written consentassignee, custodian, sequestrator, trustee or liquidator (iior other similar official) seekof itself or of a substantial part of its property; or the Company shall admit in writing (to any creditor, alone governmental authority or in concert with others, representation onjudicial court or tribunal) its inability to pay its debts generally as they come due or shall fail generally to pay its debts as they become due, or nominate any candidate to, shall make a general assignment for the benefit of its creditors; or the Company Board shall file a voluntary petition in bankruptcy or a voluntary petition or answer seeking liquidation, reorganization or other relief with respect to itself or its debts under the FSFR BoardFederal bankruptcy laws, (iii) seek the removal of any member of the Company Board as now or the FSFR Board, (iv) seek, alone or in concert with others, or support any Third Party in seeking, to replace the investment advisor of the Company or the investment advisor of FSFR, (v) solicit consents from the Company or FSFR stockholders or otherwise act or seek to act by written consent, (vi) conduct a referendum of the Company or FSFR stockholders or (vii) make a request for any stockholders list hereafter constituted or any other books and records applicable Federal or State bankruptcy, insolvency or other similar law, or shall consent to the entry of an order for relief in Sellers’ capacity as a Company an involuntary case under any such law; or FSFR stockholder;
(j) purchase or cause to be purchased or otherwise acquire or agree to acquire beneficial ownership of any securities issued by the Company or FSFR, or any securities convertible into or exchangeable for securities issued by shall file an answer admitting the Company or FSFR;
(k) sell, offer to sell, give, pledge, grant material allegations of a security interest in, encumber, assign, grant any option for the sale of or otherwise transfer or dispose of (each, a “Transfer”) any securities issued by the Company and/or any securities convertible into or exchangeable for securities issued by the Company, unless any Buyer fails to timely perform each of its obligations under Section 1.2(b), Section 1.3(c) and/or Section 1.3(d)(i) of this Agreement;
(l) institute, solicit or join, as a party, or knowingly assist any other person in instituting, soliciting or joining, any litigation, arbitration or other proceeding petition filed against the Company in any such proceeding, or FSFR or any of their current or former directors or officers (including derivative actions), other than (i) litigation to enforce otherwise seek relief under the provisions of this Agreement and (ii) counterclaims with respect to any proceeding initiated byexisting or future Federal or State bankruptcy, or on behalf of, a party to this Agreement or FSFR against Sellers;
(m) enter into or engage in any short sale or purchase, sale or grant of any option, warrant, derivative, convertible security, stock appreciation right insolvency or other similar right (including, without limitation, any put law providing for the reorganization or call option or swap transaction) with respect to or having any measurement relating to any securities winding-up of the Companies;
(n) enter into any negotiations, arrangements, understanding or agreements (whether written or oral) withcorporations, or adviseproviding for an arrangement, financeagreement, assistcomposition, seek to knowingly persuade extension or encourage, any Third Party adjustment with its creditors; or the Company shall take or publicly announce its intention to take any corporate action or make any statement in connection with any furtherance of the foregoing, or make any investment in or enter into any arrangement with any other person that engages, or offers or proposes to engage, in any of the foregoing, or otherwise take or cause any action or make any statement inconsistent with any of the foregoing; or
(oii) take any action challenging the validity an order, judgment or enforceability of this Agreement, or make or decree shall be entered in any way advance proceeding by any request or proposal that court of competent jurisdiction appointing, without the consent of the Company, FSFRa receiver, trustee or liquidator of the Company Board or of any substantial part of its property, or any substantial part of the FSFR Board amendproperty of the Company shall be sequestered, modify and any such order, judgment or waive decree of appointment or sequestration shall remain in force undismissed, unstayed or unvacated for a period of 30 days after the date of entry thereof; or
(iii) an involuntary petition against the Company in a proceeding under the Federal bankruptcy laws or other insolvency laws, as now or hereafter in effect, shall be filed and shall not be withdrawn or dismissed within 30 days thereafter, or a decree or order for relief in respect of the Company shall be entered by a court of competent jurisdiction in an involuntary case under the Federal bankruptcy laws, as now or hereafter constituted, or, under the provisions of any provision law providing for reorganization or winding-up of this Agreementcorporations which may apply to the Company, any court of competent jurisdiction shall assume jurisdiction, custody or control of the Company or of any substantial part of its property and such jurisdiction, custody or control shall remain in force unrelinquished, unstayed or unterminated for a period of 30 days.
Appears in 1 contract
Standstill. Effective from Mutual hereby covenants and agrees that, on or before the fifth anniversary of the date hereof, it will not, and will cause Mutual Affiliates to not, without the prior written consent of this Agreement and continuing until the later a majority of the certification of votes for the Company 2017 Annual Meeting of Stockholders or the certification of votes for the FSFR (as defined below) 2017 Annual Meeting of Stockholders (the “Standstill Period”), except to the extent expressly permitted by the terms of this Agreement, none members of the Sellers shallCompany's Board of Directors, and Sellers shall cause their respective controlled Affiliates not to, directly or indirectly, in do any manner, alone or in concert with othersof the following except pursuant to Section 2 hereof:
(a) solicitacquire, offer or agree to acquire any shares of Common Stock (or options or warrants to acquire, or knowingly encourage securities convertible into or exchangeable for, shares of Common Stock) if, as a result of such acquisition, Mutual (together with any Mutual Affiliates) would Beneficially Own more than a number of shares of Common Stock in excess of a number equal to forty percent (40%) of the outstanding shares of Common Stock plus forty percent (40%) of the shares of Common Stock issuable upon conversion of the Convertible Notes plus forty percent (40%) of the number of shares of Common Stock issuable upon conversation of the Preferred Stock; provided, however, that, for purposes of computing such amount, the 37,900 shares of Common Stock Beneficially Owned by Invista Capital Management, Inc. ("Invista") on December __, 1997 shall be excluded from such calculation for as long as such shares are regarded as Beneficially Owned by Invista (and no longer) and provided that no executive officer or director of Mutual or Principal or any employee of Mutual, Principal, or any of their affiliates other than officers, directors or employees of Invista charged with the responsibility thereof shall participate in the voting of such shares and provided further that for so long as the Convertible Notes are outstanding, Mutual and the Mutual Affiliates, in the aggregate, will not vote or act on written consent in any way engage matter coming before shareholders at any shareholder meeting or shareholder action in any solicitation of, any proxies or consents or become a “participant” in a “solicitation,” directly or indirectly, as such terms are defined in Regulation 14A under the Securities Exchange Act excess of 1934, as amended forty percent (the “Exchange Act”40%) of proxies or consents the shares of Common Stock outstanding plus forty percent (including, without limitation, any solicitation of consents that seeks to call a special meeting of stockholders or by encouraging or participating in any “withhold” or similar campaign), in each case, with respect to securities 40%) of the Company or Fifth Street Senior Floating Rate Corp. (“FSFR”) or any securities convertible or exchangeable into or exercisable for any such securities (collectively, “securities shares of the Companies”)Preferred Stock outstanding;
(b) make directly or indirectly commence or participate in a solicitation of proxies either to oppose the election of any proposal for consideration Person to the Board of Directors or to seek the removal of any Person from the Board of Directors, which Person has been nominated by stockholders at any annual or special meeting the Nominating Committee of the stockholders Board of the Company or FSFR, whether pursuant to Rule 14a-8 under the Exchange Act, either such company’s constituent documents or otherwiseDirectors;
(c) knowingly advise, encourage, support, instruct or influence vote its shares of Common Stock for the election of any person with respect Person to any the Board of Directors other than the Persons nominated by the Nominating Committee of the matters covered by this Section 3.1 or with respect to the voting or disposition Board of any securities of the Companies at any annual or special meeting of stockholders of the Company or FSFR, except in accordance with Section 3.4, or seek to do so;Directors; or
(d) agree, attempt, seek directly or propose indirectly make or solicit or assist any third party to deposit make a tender or exchange offer to purchase any securities shares of the Companies in Common Stock or make any voting trust or similar arrangementpublic announcement concerning, or subject submit any securities of the Companies to any arrangement or agreement with respect written proposal to the voting thereof, except in accordance with Section 3.4;
(e) knowingly seek or encourage any person to submit nominations in furtherance Board of a “contested solicitation” or take other action for the election or removal of directors with respect to the Company or FSFR, including any action that is intended to, or is reasonably likely to result in, the replacement of the investment advisor Directors of the Company or FSFRfor a merger, or a modification to the terms or conditions share exchange, acquisition of either the Company’s or FSFR’s investment advisory agreement;
(f) form, join in or in any way participate in a partnership, limited partnership, syndicate or other group, including, without limitation, a group as defined under Section 13(d) substantially all of the Exchange Act (except such participation related to the reasonable unwinding of any such group currently existing as of the date of this Agreement) with any person who is not identified on Schedule I hereto (any such person, a “Third Party”), with respect to any securities of the Companies assets or take any other action that would interfere with the ability of Sellers to vote in accordance with this Agreement;
(g) make any disclosure, communication, announcement or statement regarding any intent, purpose, plan or proposal with respect to the FSC Board of Directors (the “Company Board”), the Company investment advisor or the terms and conditions of the Company’s investment advisory agreement, the FSFR Board of Directors (the “FSFR Board”), the FSFR investment advisor or the terms and conditions of FSFR’s investment advisory agreement, the Company, FSFR, or the management, policies or affairs of either the Company or FSFR, or with respect to this Agreement, that is inconsistent with the provisions of this Agreement;
(h) effect or seek to effect, offer or propose to effect, cause or participate in, or in any way assist or facilitate any other person to effect or seek, offer or propose to effect or participate in, any tender or exchange offer, merger, consolidation, acquisition, scheme, arrangement, business combination, recapitalization, reorganization, sale or acquisition of assets, liquidation, dissolution, extraordinary dividend, significant share repurchase or other extraordinary similar transaction involving the Company, FSFR or either of their investment advisors, or any of their subsidiaries or joint ventures or any of their respective securities (each, an “Extraordinary Transaction”), or make any statement or disclosure regarding any intent, purpose, plan or proposal with respect to any Extraordinary Transaction or this Agreement that is inconsistent with the provisions of this Agreement, including any intent, purpose, plan or proposal that is conditioned on, or would require waiver, amendment, nullification or invalidation of, any provision of this Agreement or take any action that could require the Company or FSFR to make any public disclosure relating to any such intent, purpose, plan, proposal or condition;
(i) (i) call or seek to call or request the calling of any meeting of stockholders at either the Company or FSFR, including by written consent, (ii) seek, alone or in concert with others, representation on, or nominate any candidate to, the Company Board or the FSFR Board, (iii) seek the removal of any member of the Company Board or the FSFR Board, (iv) seek, alone or in concert with others, or support any Third Party in seeking, to replace the investment advisor of the Company or the investment advisor of FSFR, (v) solicit consents from the Company or FSFR stockholders or otherwise act or seek to act by written consent, (vi) conduct a referendum of the Company or FSFR stockholders or (vii) make a request for any stockholders list or any other books and records in Sellers’ capacity as a Company or FSFR stockholder;
(j) purchase or cause to be purchased or otherwise acquire or agree to acquire beneficial ownership of any securities issued by the Company or FSFR, or any securities convertible into or exchangeable for securities issued by the Company or FSFR;
(k) sell, offer to sell, give, pledge, grant a security interest in, encumber, assign, grant any option for the sale of or otherwise transfer or dispose of (each, a “Transfer”) any securities issued by the Company and/or any securities convertible into or exchangeable for securities issued by the Company, unless any Buyer fails to timely perform each of its obligations under Section 1.2(b), Section 1.3(c) and/or Section 1.3(d)(i) of this Agreement;
(l) institute, solicit or join, as a party, or knowingly assist any other person in instituting, soliciting or joining, any litigation, arbitration or other proceeding against the Company or FSFR or any of their current or former directors or officers (including derivative actions), other than (i) litigation to enforce the provisions of this Agreement and (ii) counterclaims with respect to any proceeding initiated by, or on behalf of, a party to this Agreement or FSFR against Sellers;
(m) enter into or engage in any short sale or purchase, sale or grant of any option, warrant, derivative, convertible security, stock appreciation right or other similar right (including, without limitation, any put or call option or swap transaction) with respect to or having any measurement relating to any securities of the Companies;
(n) enter into any negotiations, arrangements, understanding or agreements (whether written or oral) with, or advise, finance, assist, seek to knowingly persuade or encourage, any Third Party to take any action or make any statement in connection with any of the foregoing, or make any investment in or enter into any arrangement with any other person that engages, or offers or proposes to engage, in any of the foregoing, or otherwise take or cause any action or make any statement inconsistent with any of the foregoing; or
(o) take any action challenging the validity or enforceability of this Agreement, or make or in any way advance any request or proposal that the Company, FSFR, the Company Board or the FSFR Board amend, modify or waive any provision of this Agreement.
Appears in 1 contract
Samples: Shareholders' Agreement (Principal Mutual Life Insurance Co)
Standstill. Effective from (a) During the date of this Agreement and continuing until the later Term, each of the certification of votes for the Company 2017 Annual Meeting of Stockholders or the certification of votes for the FSFR (as defined below) 2017 Annual Meeting of Stockholders (the “Standstill Period”), except to the extent expressly permitted by the terms of this Agreement, none of the Sellers shallInvestors shall not, and Sellers shall cause their respective controlled Affiliates Representatives not to, in any way, directly or indirectly (in each case, except as expressly permitted by this Agreement, including, without limitation, Sections 1, 3 and 7 hereof):
(i) make, engage in, or knowingly participate in, directly or indirectly, in any manner, alone or in concert with others:
“solicitation” (aas such term is defined under the Exchange Act) solicit, or knowingly encourage or in any way engage in any solicitation of, any of proxies or consents with respect to the election or removal of directors of the Company or any other matter or proposal relating to the Company or become a “participant” in a “solicitation,” directly or indirectly, (as such terms are term is defined in Regulation Instruction 3 to Item 4 of Schedule 14A promulgated under the Securities Exchange Act of 1934, as amended (the “Exchange Act”) in any such solicitation of proxies or consents consents;
(includingii) knowingly encourage or advise any Third Party (as defined below) or knowingly assist any Third Party in engaging in encouraging or advising any other person (A) with respect to the giving or withholding of any proxy or consent relating to, without limitationor other authority to vote, any solicitation Voting Securities, or (B) in conducting any type of consents referendum relating to the Company (other than such encouragement or advice that seeks to call a special meeting of stockholders is consistent with the Board’s recommendation in connection with such matter);
(iii) form, join or by encouraging or participating act in concert with any “withholdgroup” as defined pursuant to Section 13(d) of the Exchange Act with respect to any Voting Securities, other than a group solely with or similar campaign), in each caseamong the Investors and their Affiliates, with respect to securities of the Company Voting Securities now or Fifth Street Senior Floating Rate Corp. (“FSFR”) or any securities convertible or exchangeable into or exercisable for any such securities (collectively, “securities of the Companies”);
(b) make any proposal for consideration hereafter owned by stockholders at any annual or special meeting of the stockholders of the Company or FSFR, whether pursuant to Rule 14a-8 under the Exchange Act, either such company’s constituent documents or otherwise;
(c) knowingly advise, encourage, support, instruct or influence any person with respect to any of the matters covered by this Section 3.1 or with respect to the voting or disposition of any securities of the Companies at any annual or special meeting of stockholders of the Company or FSFR, except in accordance with Section 3.4them, or seek to do so;
(d) otherwise in any manner agree, attempt, seek or propose to deposit any securities of the Companies Company in any voting trust or similar arrangement, or subject any securities of the Companies Company to any arrangement or agreement with respect to the voting thereof, other than any such voting trust or similar arrangement (A) solely with or among the Investors and their Affiliates, (B) related to customary brokerage accounts, margin accounts, prime brokerage accounts and similar accounts, or (C) granting proxies in solicitations approved by the Board, and except as expressly set forth in accordance with Section 3.4this Agreement;
(eiv) knowingly seek or encourage any person to submit nominations in furtherance of a “contested solicitation” or take other action for the election or removal of directors with respect to the Company or FSFRmake, including any action that is intended to, or is reasonably likely to result in, the replacement of the investment advisor of the Company or FSFR, or a modification to the terms or conditions of either the Company’s or FSFR’s investment advisory agreement;
(f) form, join in or in any way participate in a partnership, limited partnership, syndicate or other group, including, without limitation, a group as defined under Section 13(d) of the Exchange Act (except such participation related to the reasonable unwinding of any such group currently existing as of the date of this Agreement) with any person who is not identified on Schedule I hereto (any such person, a “Third Party”), with respect to any securities of the Companies or take any other action that would interfere with the ability of Sellers to vote in accordance with this Agreement;
(g) make any disclosure, communication, announcement or statement regarding any intent, purpose, plan or proposal with respect to the FSC Board of Directors (the “Company Board”), the Company investment advisor or the terms and conditions of the Company’s investment advisory agreement, the FSFR Board of Directors (the “FSFR Board”), the FSFR investment advisor or the terms and conditions of FSFR’s investment advisory agreement, the Company, FSFR, or the management, policies or affairs of either the Company or FSFR, or with respect to this Agreement, that is inconsistent with the provisions of this Agreement;
(h) effect or seek to effect, offer or propose to effect, cause or participate in, or in any way assist or facilitate any other person to effect or seek, offer or propose to effect or participate in, any tender or exchange offer, merger, consolidation, acquisition, scheme, arrangement, business combination, recapitalization, reorganization, sale or acquisition of assets, liquidation, dissolution, extraordinary dividend, significant share repurchase or other extraordinary transaction involving the Company, FSFR or either of their investment advisors, or any of their subsidiaries or joint ventures or any of their respective securities (each, an “Extraordinary Transaction”), or make any statement or disclosure regarding any intent, purpose, plan offer or proposal with respect to any Extraordinary Transaction (as defined below), either publicly or this Agreement in a manner that is inconsistent would reasonably require public disclosure by the Company or any of the Investors (it being understood that the foregoing will not restrict any of the Investors from tendering shares, receiving payment for shares or otherwise participating in any other dividend, share repurchase or similar transaction available to all shareholders, subject to applicable law, including, (x) the Capital Return or an Offer or (y) any Extraordinary Transaction initiated by a Third Party on the same basis as other stockholders of the Company);
(v) make any public proposal with respect to any material change in the provisions capitalization, stock repurchase programs, dividend policy, management, business, strategy or corporate structure of the Company or any of its subsidiaries, or with respect to a liquidation or dissolution of the Company;
(vi) enter into a voting trust, arrangement or agreement with respect to any Voting Securities, or subject any Voting Securities to any voting trust, arrangement or agreement, in each case other than (A) this Agreement, including any intent(B) solely with or among the Investors and their Affiliates, purpose, plan or proposal that is conditioned on(C) granting proxies in solicitations approved by the Board, or would require waiver(D) related to customary brokerage accounts, amendmentmargin accounts, nullification or invalidation of, any provision of this Agreement or take any action that could require the Company or FSFR to make any public disclosure relating to any such intent, purpose, plan, proposal or conditionprime brokerage accounts and similar accounts;
(ivii) (i) call or seek to call or request the calling of any meeting of stockholders at either the Company or FSFR, including by written consent, (iiA) seek, alone or in concert with others, election or appointment to, or representation on, the Board or nominate or propose the nomination of, any candidate to, to the Company Board or the FSFR Board, except as set forth in this Agreement, (iiiB) seek initiate, alone or in concert with others, or be the removal proponent of, or become a “participant” in any “solicitation” (as such terms are defined in Regulation 14A under the Exchange Act) of proxies in respect of, any member stockholder proposal for consideration at, or bring any business before, any meeting of the Company Board Company’s stockholders or the FSFR Boardthrough a consent solicitation, (ivC) seek, alone or in concert with others, or support the removal of any Third Party in seeking, to replace the investment advisor member of the Company Board (other than as required by Section 1of this Agreement); (D) initiate, knowingly encourage or participate in any “withhold” or similar campaign with respect to any meeting of the investment advisor of FSFR, (v) solicit consents from the Company or FSFR Company’s stockholders or otherwise act action by consent; or (E) call or seek to act by written consentcall, (vi) conduct a referendum or request the call of, alone or in concert with others, any meeting of the Company Company’s stockholders, whether or FSFR stockholders not such a meeting is permitted by the Certificate of Incorporation or By-Laws, provided that nothing in this Agreement will prevent any of the Investors or their respective Affiliates from taking actions in furtherance of identifying any Replacement Director;
(viiviii) make a any request for any stockholders stockholder list materials or any other books and records of the Company under Section 220 of the DGCL or otherwise; provided that nothing herein shall prevent any New Director (or any Replacement Director) from making such a request solely in Sellers’ such New Director’s (or Replacement Director’s) capacity as a Company director in a manner consistent with his or FSFR stockholderher fiduciary duties to the Company;
(j) purchase or cause to be purchased or otherwise acquire or agree to acquire beneficial ownership of any securities issued by the Company or FSFR, or any securities convertible into or exchangeable for securities issued by the Company or FSFR;
(k) sell, offer to sell, give, pledge, grant a security interest in, encumber, assign, grant any option for the sale of or otherwise transfer or dispose of (each, a “Transfer”) any securities issued by the Company and/or any securities convertible into or exchangeable for securities issued by the Company, unless any Buyer fails to timely perform each of its obligations under Section 1.2(b), Section 1.3(c) and/or Section 1.3(d)(i) of this Agreement;
(l) institute, solicit or join, as a party, or knowingly assist any other person in instituting, soliciting or joining, any litigation, arbitration or other proceeding against the Company or FSFR or any of their current or former directors or officers (including derivative actions), other than (i) litigation to enforce the provisions of this Agreement and (ii) counterclaims with respect to any proceeding initiated by, or on behalf of, a party to this Agreement or FSFR against Sellers;
(m) enter into or engage in any short sale or purchase, sale or grant of any option, warrant, derivative, convertible security, stock appreciation right or other similar right (including, without limitation, any put or call option or swap transaction) with respect to or having any measurement relating to any securities of the Companies;
(nix) enter into any negotiations, arrangementsagreements or understandings with any person not (A) a Party to this Agreement, understanding or agreements (whether written or oralB) witha member of the Board, (C) an officer of the Company, or advise, finance, assist, seek (D) an Affiliate of any Investor (any person not set forth in clauses (A)-(D) shall be referred to knowingly persuade or encourage, any as a “Third Party Party”) to take any action or make any statement in connection with that any of the foregoingInvestors are prohibited from taking pursuant to this Section 6(a);
(x) sell, offer or make agree to sell directly or indirectly, through swap or hedging transactions or otherwise, the securities of the Company or any investment in or enter into any arrangement with any other person that engages, or offers or proposes to engage, in rights decoupled from the underlying securities of the Company held by any of the foregoingInvestors or any of their respective Affiliates to any Third Party that would result in, or following which, to any such Investors’ knowledge, such Third Party, together with its affiliates and associates, owning, controlling or otherwise take having any beneficial or cause any action other ownership interest in the aggregate of more than 4.9% of the shares of Common Stock outstanding at such time, except in a transaction approved by the Board;
(xi) acquire, agree to acquire or make a proposal to acquire (or publicly announce or otherwise disclose an intention to propose to acquire) or offer to acquire, by purchase or otherwise, beneficial ownership of any statement shares of Common Stock or any other securities of the Company convertible into, settleable in or exercisable for shares of Common Stock not beneficially owned by them immediately prior to the Effective Time;
(xii) disclose any intention, plan or arrangement inconsistent with any provision of the foregoingthis Section 6; or
(oxiii) take any action challenging the validity or enforceability of this Agreement, or make or in any way advance any request or proposal that the Company, FSFRdirectly or indirectly, the Company Board or the FSFR Board amend, modify amend or waive any provision of this Section (including this clause (xiii)), other than through non-public communications with the Company that would not reasonably be expected to trigger public disclosure obligations for any of the Parties. Notwithstanding anything set forth herein to the contrary, nothing set forth in this Agreement shall be deemed to prevent any of the Investors from (I) communicating privately with the Board or any of the Company’s executive officers regarding any matter, so long as such communications are not intended to, and would not reasonably be expected to, require the Company or any of the Investors to make public disclosure with respect thereto, (II) identifying potential director candidates for any Replacement Director so long as such actions do not create, and would not reasonably be expected to create, a public disclosure obligation for any of the Investors or the Company, are not publicly disclosed by any of the Investors or their respective Affiliates and are undertaken on a basis reasonably designed to be confidential; (III) making or sending private communications to investors or prospective investors in any of the Investors or any of their respective Affiliates, provided that such statements or communications (1) are based on publicly available information and (2) are not reasonably expected to be publicly disclosed and are understood by all parties to be confidential communications; (IV) taking any action to the extent necessary to comply with any law, rule or regulation or any action required by any governmental or regulatory authority or stock exchange that has, or may have, jurisdiction over any of the Investors; or (V) communicating privately with stockholders of the Company when such communication is not made with an intent to otherwise violate, and would not be reasonably expected to result in a violation of, any provision of this Agreement. Furthermore, for the avoidance of doubt, nothing in this Agreement shall be deemed to restrict in any way the New Directors (or any Replacement Director) in the exercise of his or her fiduciary duties under applicable law as a director of the Company.
(b) Notwithstanding anything contained in this Agreement to the contrary, the provisions of Section 4, 5 and 6 of this Agreement shall automatically terminate upon the consummation of a Change of Control transaction agreed to by the Board and involving the Company, provided, that if the First A/CC Designee (or any Replacement Director thereof) approves of any such Change of Control transaction as a Board member, the termination provided for under this Section 6(b) shall not apply with respect to such Change of Control transaction.
(c) On one (1) occasion following such time that the Cable Car Investors and the Anson Investors cease to have a Schedule 13D filed with the SEC and during the Term, upon reasonable written notice from the Company pursuant to Section 18 hereof, such Investors shall promptly provide the Company with information regarding the amount of the securities of the Company beneficially owned by such Investors, with respect to which such Investors have any direct or indirect rights or options to acquire or any economic exposure through any derivative securities or contracts or instruments in any way related to the price of such securities, or with respect to which such Investors have hedged its position by selling covered call options. This ownership information provided to the Company will be kept strictly confidential, unless required to be disclosed pursuant to applicable laws and regulations, any subpoena, legal process or other legal requirement or in connection with any litigation or similar proceedings in connection with this Agreement.
Appears in 1 contract
Standstill. Effective (a) Each H Partners Group Member agrees that, without the prior written consent of the Company, from the date of this Agreement and continuing until the later date immediately following the date of the certification of votes for the Company 2017 2016 Annual Meeting of Stockholders or the certification of votes for the FSFR (as defined below) 2017 Annual Meeting of Stockholders (the “Standstill Period”), except to the extent expressly permitted by the terms of this Agreement, none of the Sellers shall, and Sellers shall cause their respective controlled Affiliates not tohe or it will not, directly or indirectly:
(i) purchase or cause to be purchased or otherwise acquire or agree to acquire beneficial ownership of any Common Stock or other securities issued by the Company, or any securities convertible into or exchangeable for Common Stock, if, in any mannersuch case immediately after the taking of such action, alone the H Partners Group together with its Affiliates and Associates would, in the aggregate, beneficially own twenty percent (20%) or in concert with others:more of the then outstanding shares of Common Stock;
(aii) solicitengage in, or knowingly encourage assist any person or in any way engage in entity not a party to this Agreement in, any solicitation of, any of proxies or consents or become a “participant” in a “solicitation,” directly or indirectly, (as such terms are defined in Regulation 14A under the Securities Exchange Act of 1934, as amended (the “Exchange Act”amended) of proxies or consents (including, without limitation, any solicitation of consents that seeks to call a special meeting of stockholders or by encouraging or participating in any “withhold” or similar campaignstockholders), in each case, with respect to securities of the Company or Fifth Street Senior Floating Rate Corp. (“FSFR”) or any securities convertible or exchangeable into or exercisable for other than any such securities (collectively, “securities of action that is consistent with the Companies”Board’s recommendation with such matter);
(biii) make encourage, advise or influence any proposal for consideration other person or entity or assist any person or entity not a party to this Agreement in so encouraging, advising or influencing any person or entity with respect to the giving or withholding of any proxy, consent or other authority to vote or in conducting any type of referendum with respect to the Company (other than any such action that is consistent with the Board’s recommendation with such matter);
(iv) form, join or in any way participate in any “group” (within the meaning of Section 13(d)(3) of the Exchange Act) with respect to the Common Stock (other than a “group” that includes all or some of the persons identified on Schedule A, but does not include any other entities or persons not identified on Schedule A as of the date hereof); provided, however, that nothing herein shall limit the ability of an Affiliate of H Partners to join the “group” following the execution of this Agreement, so long as any such Affiliate agrees to be bound by the terms and conditions of this Agreement.
(v) deposit any Common Stock in any voting trust or subject any Common Stock to any arrangement or agreement with respect to the voting of any Common Stock, other than any such voting trust, arrangement or agreement solely among H Partners Group Members and otherwise in accordance with this Agreement;
(vi) seek to call, or request the call of, a special meeting of the stockholders of the Company, present at any annual or any special meeting of the stockholders of the Company any proposal for consideration for action by stockholders, or FSFR, whether pursuant to Rule 14a-8 under make a request for a list of the Exchange Act, either such companyCompany’s constituent documents stockholders or otherwiseother Company records;
(cvii) knowingly effect, seek to effect or in any way assist or facilitate any other Person in effecting or seeking to effect any: (i) tender offer or exchange offer to acquire securities of the Company; (ii) acquisition of any interest in any material asset or business of the Company or any of its subsidiaries; (iii) merger, acquisition, share exchange or other business combination involving the Company or any of its subsidiaries; or (iv) recapitalization, restructuring, liquidation, dissolution or other extraordinary transaction with respect to the Company or any of its subsidiaries or any material portion of its or their businesses;
(viii) propose or nominate, or cause or encourage any person to propose or nominate, any candidates to stand for election to the Board or seek the removal of any member of the Board, except as specifically permitted by Section 1.1;
(ix) make any public communication in opposition to any transaction approved by the Board, except in connection with (i) any transaction to acquire all of the outstanding shares of Common Stock of the Company or substantially all of the assets of the Company or (ii) any acquisition by the Company of a third party where the aggregate consideration therefor exceeds 40% of the Company’s then current market capitalization, which in either case is not supported by Mr. Nabi;
(x) publicly criticize the Company’s business, financial structure or other strategy;
(xi) seek to advise, encourage, support, instruct support or influence any person with respect to any of the matters covered by this Section 3.1 or with respect to the voting or disposition of any securities of the Companies Company at any annual or special meeting of stockholders or publicly announce or disclose to any third party how it intends to vote or has voted at the 2016 Annual Meeting;
(xii) make any request or submit any proposal to amend or waive the terms of this Agreement other than through non-public communications with the Company that would not be reasonably determined to trigger public disclosure obligations for any party; or
(xiii) publicly disclose any intention, plan or arrangement inconsistent with any provision of this Section 2.1. Notwithstanding anything to the contrary, nothing in this Agreement shall prohibit or restrict any director of the Company, including Mr, Nabi or the H Partners Additional Director, or any H Partners Replacement Director, as applicable, from exercising his or her rights or complying with his or her fiduciary duties as a director of the Company or FSFR, except from participating in accordance board room discussions or private discussions with Section 3.4, or seek to do so;
(d) agree, attempt, seek or propose to deposit any securities other members of the Companies in any voting trust or similar arrangement, or subject any securities of the Companies to any arrangement or agreement with respect to the voting thereof, except in accordance with Section 3.4;
(e) knowingly seek or encourage any person to submit nominations in furtherance of a “contested solicitation” or take other action for the election or removal of directors with respect to the Company or FSFRBoard, including any action that is intended to, or is reasonably likely to result in, the replacement of the investment advisor of the Company or FSFR, or a modification to the terms or conditions of either the Company’s or FSFR’s investment advisory agreement;
(f) form, join in or in any way participate in a partnership, limited partnership, syndicate or other group, including, without limitation, a group as defined under Section 13(d) of the Exchange Act (except such participation related to the reasonable unwinding of any such group currently existing as of the date of this Agreement) with any person who is not identified on Schedule I hereto (any such person, a “Third Party”), with respect to any securities of the Companies or take any other action that would interfere with the ability of Sellers matters referred to vote in accordance with this Agreement;
(g) make any disclosure, communication, announcement or statement regarding any intent, purpose, plan or proposal with respect to the FSC Board of Directors (the “Company Board”), the Company investment advisor or the terms and conditions of the Company’s investment advisory agreement, the FSFR Board of Directors (the “FSFR Board”), the FSFR investment advisor or the terms and conditions of FSFR’s investment advisory agreement, the Company, FSFR, or the management, policies or affairs of either the Company or FSFR, or with respect to this Agreement, that is inconsistent with the provisions of this Agreement;
(h) effect or seek to effect, offer or propose to effect, cause or participate in, or in any way assist or facilitate any other person to effect or seek, offer or propose to effect or participate in, any tender or exchange offer, merger, consolidation, acquisition, scheme, arrangement, business combination, recapitalization, reorganization, sale or acquisition of assets, liquidation, dissolution, extraordinary dividend, significant share repurchase or other extraordinary transaction involving the Company, FSFR or either of their investment advisors, or any of their subsidiaries or joint ventures or any of their respective securities (each, an “Extraordinary Transaction”), or make any statement or disclosure regarding any intent, purpose, plan or proposal with respect to any Extraordinary Transaction or this Agreement that is inconsistent with the provisions of this Agreement, including any intent, purpose, plan or proposal that is conditioned on, or would require waiver, amendment, nullification or invalidation of, any provision of this Agreement or take any action that could require the Company or FSFR to make any public disclosure relating to any such intent, purpose, plan, proposal or condition;
(i) (i) call or seek to call or request the calling of any meeting of stockholders at either the Company or FSFR, including by written consent, (ii) seek, alone or in concert with others, representation on, or nominate any candidate to, the Company Board or the FSFR Board, (iii) seek the removal of any member of the Company Board or the FSFR Board, (iv) seek, alone or in concert with others, or support any Third Party in seeking, to replace the investment advisor of the Company or the investment advisor of FSFR, (v) solicit consents from the Company or FSFR stockholders or otherwise act or seek to act by written consent, (vi) conduct a referendum of the Company or FSFR stockholders or (vii) make a request for any stockholders list or any other books and records in Sellers’ capacity as a Company or FSFR stockholder;
(j) purchase or cause to be purchased or otherwise acquire or agree to acquire beneficial ownership of any securities issued by the Company or FSFR, or any securities convertible into or exchangeable for securities issued by the Company or FSFR;
(k) sell, offer to sell, give, pledge, grant a security interest in, encumber, assign, grant any option for the sale of or otherwise transfer or dispose of (each, a “Transfer”) any securities issued by the Company and/or any securities convertible into or exchangeable for securities issued by the Company, unless any Buyer fails to timely perform each of its obligations under Section 1.2(b), Section 1.3(c) and/or Section 1.3(d)(i) of this Agreement;
(l) institute, solicit or join, as a party, or knowingly assist any other person in instituting, soliciting or joining, any litigation, arbitration or other proceeding against the Company or FSFR or any of their current or former directors or officers (including derivative actions), other than (i) litigation to enforce the provisions of this Agreement and (ii) counterclaims with respect to any proceeding initiated by, or on behalf of, a party to this Agreement or FSFR against Sellers;
(m) enter into or engage in any short sale or purchase, sale or grant of any option, warrant, derivative, convertible security, stock appreciation right or other similar right (including, without limitation, any put or call option or swap transaction) with respect to or having any measurement relating to any securities of the Companies;
(n) enter into any negotiations, arrangements, understanding or agreements (whether written or oral) with, or advise, finance, assist, seek to knowingly persuade or encourage, any Third Party to take any action or make any statement in connection with any of the foregoing, or make any investment in or enter into any arrangement with any other person that engages, or offers or proposes to engage, in any of the foregoing, or otherwise take or cause any action or make any statement inconsistent with any of the foregoing; or
(o) take any action challenging the validity or enforceability of this Agreement, or make or in any way advance any request or proposal that the Company, FSFR, the Company Board or the FSFR Board amend, modify or waive any provision of this Agreement2.1.
Appears in 1 contract
Samples: Shareholder Agreement (Tempur Sealy International, Inc.)
Standstill. Effective (a) The Seller agrees that, for a period of two (2) years from the date of this Agreement and continuing or until such earlier time as the later restrictions in this Section 4 terminate as provided in Section 4.1(c) of the certification of votes for the Company 2017 Annual Meeting of Stockholders or the certification of votes for the FSFR (as defined below) 2017 Annual Meeting of Stockholders this Agreement (the “Standstill Period”), except unless specifically consented to the extent expressly permitted in writing by the terms Buyer, neither the Seller nor any of this Agreement, none its subsidiaries or other affiliates (nor any other person acting on behalf of or in concert with the Sellers shall, and Sellers shall cause their respective controlled Affiliates not to, directly Seller or indirectlyany of its subsidiaries or other affiliates) will, in any manner, alone directly or in concert with othersindirectly:
(ai) soliciteffect or seek, offer or propose (whether publicly or otherwise) to effect, or knowingly encourage announce any intention to effect or in any way engage in any solicitation of, any proxies or consents or become a “participant” in a “solicitation,” directly or indirectly, as such terms are defined in Regulation 14A under the Securities Exchange Act of 1934, as amended (the “Exchange Act”) of proxies or consents (including, without limitation, any solicitation of consents that seeks to call a special meeting of stockholders or by encouraging or participating in any “withhold” or similar campaign), in each case, with respect to securities of the Company or Fifth Street Senior Floating Rate Corp. (“FSFR”) or any securities convertible or exchangeable into or exercisable for any such securities (collectively, “securities of the Companies”);
(b) make any proposal for consideration by stockholders at any annual or special meeting of the stockholders of the Company or FSFR, whether pursuant to Rule 14a-8 under the Exchange Act, either such company’s constituent documents or otherwise;
(c) knowingly advise, encourage, support, instruct or influence any person with respect to any of the matters covered by this Section 3.1 or with respect to the voting or disposition of any securities of the Companies at any annual or special meeting of stockholders of the Company or FSFR, except in accordance with Section 3.4cause, or seek to do so;
(d) agree, attempt, seek or propose to deposit any securities of the Companies in any voting trust or similar arrangement, or subject any securities of the Companies to any arrangement or agreement with respect to the voting thereof, except in accordance with Section 3.4;
(e) knowingly seek or encourage any person to submit nominations in furtherance of a “contested solicitation” or take other action for the election or removal of directors with respect to the Company or FSFR, including any action that is intended to, or is reasonably likely to result in, the replacement of the investment advisor of the Company or FSFR, or a modification to the terms or conditions of either the Company’s or FSFR’s investment advisory agreement;
(f) form, join participate in or in any way participate in a partnershipassist, limited partnership, syndicate facilitate or other group, including, without limitation, a group as defined under Section 13(d) of the Exchange Act (except such participation related to the reasonable unwinding of any such group currently existing as of the date of this Agreement) with any person who is not identified on Schedule I hereto (any such person, a “Third Party”), with respect to any securities of the Companies or take any other action that would interfere with the ability of Sellers to vote in accordance with this Agreement;
(g) make any disclosure, communication, announcement or statement regarding any intent, purpose, plan or proposal with respect to the FSC Board of Directors (the “Company Board”), the Company investment advisor or the terms and conditions of the Company’s investment advisory agreement, the FSFR Board of Directors (the “FSFR Board”), the FSFR investment advisor or the terms and conditions of FSFR’s investment advisory agreement, the Company, FSFR, or the management, policies or affairs of either the Company or FSFR, or with respect to this Agreement, that is inconsistent with the provisions of this Agreement;
(h) effect or seek to effect, offer or propose to effect, cause or participate in, or in any way assist or facilitate encourage any other person to effect or seek, offer or propose (whether publicly or otherwise) to effect or participate in: (a) any acquisition of any securities (or beneficial ownership thereof), or rights or options to acquire any securities (or beneficial ownership thereof), or any indebtedness or businesses, or assets of, the Company or any of its subsidiaries; (b) any tender or exchange offer, merger, consolidation, acquisition, scheme, arrangement, disposition or other business combination, combination involving the Company or any of its subsidiaries or assets; (c) any recapitalization, reorganization, sale or acquisition of assetsrestructuring, liquidation, dissolution, extraordinary dividend, significant share repurchase dissolution or other extraordinary transaction involving with respect to the CompanyCompany or any of its subsidiaries; or (d) any “solicitation” of “proxies” (as such terms are used in the proxy rules of the Securities and Exchange Commission) or consents to vote any voting securities of the Company or any of its subsidiaries, FSFR or either any solicitation of their investment advisorsshareholders of the Company for the approval of any shareholder proposals, or any advising or influencing of their subsidiaries or joint ventures any person with respect to the voting of any voting securities of the Company or any of their respective securities its subsidiaries; provided, that the foregoing shall not restrict Seller from tendering shares, receiving payment for shares or otherwise participating in any such transaction on the same basis as other shareholders of the Company or any of its subsidiaries or from participating in any such transaction that has been approved by the Board, subject to the other terms of this Agreement;
(eachii) form, an join or in any way participate in a “Extraordinary Transaction”), or make any statement or disclosure regarding any intent, purpose, plan or proposal group” (as defined under the Securities Exchange Act of 1934) with respect to any Extraordinary Transaction or this Agreement that is inconsistent with the provisions of this Agreement, including any intent, purpose, plan or proposal that is conditioned on, or would require waiver, amendment, nullification or invalidation of, any provision of this Agreement or take any action that could require the Company or FSFR to make otherwise act in concert with any public disclosure relating to person in respect of any such intent, purpose, plan, proposal or conditionsecurities (except for any “group” solely comprised of Seller and its affiliates);
(iiii) (i) call or seek to call or request the calling of any meeting of stockholders at either the Company or FSFR, including by written consent, (ii) seekotherwise act, alone or in concert with others, to seek representation on, or nominate any candidate to, on the Company Board or to control or influence the FSFR Board, (iii) seek the removal of any member management or policies of the Company Board or the FSFR Board, Company;
(iv) seekarrange, alone or in any way participate, directly or indirectly, in any financing for the purchase of any securities or assets of the Company; or
(v) enter into any discussions or arrangements with any third party (other than the Buyer) with respect to any of the foregoing.
(b) The Seller further agrees that, for a period of two (2) years following the end of the Standstill Period or until such earlier time as the restrictions in this Section 4 terminate as provided in Section 4.1(c) of this Agreement (the “Additional Limited Standstill Period”), unless specifically consented to in writing by the Buyer, neither the Seller nor any of its subsidiaries or other affiliates (nor any other person acting on behalf of or in concert with others, or support any Third Party in seeking, to replace the investment advisor of the Company or the investment advisor of FSFR, (v) solicit consents from the Company or FSFR stockholders or otherwise act or seek to act by written consent, (vi) conduct a referendum of the Company or FSFR stockholders or (vii) make a request for any stockholders list or any other books and records in Sellers’ capacity as a Company or FSFR stockholder;
(j) purchase or cause to be purchased or otherwise acquire or agree to acquire beneficial ownership of any securities issued by the Company or FSFR, or any securities convertible into or exchangeable for securities issued by the Company or FSFR;
(k) sell, offer to sell, give, pledge, grant a security interest in, encumber, assign, grant any option for the sale of or otherwise transfer or dispose of (each, a “Transfer”) any securities issued by the Company and/or any securities convertible into or exchangeable for securities issued by the Company, unless any Buyer fails to timely perform each of its obligations under Section 1.2(b), Section 1.3(c) and/or Section 1.3(d)(i) of this Agreement;
(l) institute, solicit or join, as a party, or knowingly assist any other person in instituting, soliciting or joining, any litigation, arbitration or other proceeding against the Company or FSFR Seller or any of their current its subsidiaries or former directors or officers (including derivative actions)other affiliates) will, other than (i) litigation to enforce the provisions of this Agreement and (ii) counterclaims with respect to any proceeding initiated by, or on behalf of, a party to this Agreement or FSFR against Sellers;
(m) enter into or engage in any short sale manner, directly or purchase, sale or grant of any option, warrant, derivative, convertible security, stock appreciation right or other similar right (including, without limitation, any put or call option or swap transaction) with respect to or having any measurement relating to any securities of the Companies;
(n) enter into any negotiations, arrangements, understanding or agreements (whether written or oral) with, or advise, finance, assist, seek to knowingly persuade or encourage, any Third Party to take any action or make any statement in connection with any of the foregoing, or make any investment in or enter into any arrangement with any other person that engages, or offers or proposes to engage, indirectly engage in any of the foregoingactions described in clauses (i) through (v) of Section 4(a) above; provided, that the Seller shall be permitted to acquire any securities (or beneficial ownership thereof), or otherwise take rights or options to acquire any securities (or beneficial ownership thereof), of the Company during the Additional Limited Standstill Period so long as (i) the Seller does not purchase securities that would cause its ownership to exceed 4.9% of the Common Stock of the Company at the time of such purchase, (ii) the Seller agrees to vote any action such securities acquired consistent with the recommendation of the Board of Directors of the Company on any shareholder action, other than with respect to (A) an Extraordinary Event with respect to the Company, or make (B) any statement inconsistent with proposal by the Company to implement any takeover defense measures, and (iii) the Seller does not engage in any of the foregoing; or
other actions described in clauses (oi) take any action challenging the validity or enforceability through (v) of Section 4(a) above. For purposes of this Agreementparagraph, “Extraordinary Event” shall mean any merger, consolidation, acquisition, disposition, spin-off, reverse stock split, sale of all or make substantially of assets, business combination or in any way advance any request or proposal similar transaction involving the Company that is submitted for approval of stockholders of the Company, FSFR, the Company Board or the FSFR Board amend, modify or waive any provision of this Agreement.
Appears in 1 contract
Samples: Common Stock Purchase Agreement (Colony NorthStar, Inc.)
Standstill. Effective from (a) Each Principal Purchaser covenants to and agrees with the Company that, without the Company’s prior written consent, neither such Principal Purchaser nor any of its Affiliates will, directly or indirectly until the date of this Agreement and continuing until that is eighteen (18) months after the later of the certification of votes for the Company 2017 Annual Meeting of Stockholders or the certification of votes for the FSFR (as defined below) 2017 Annual Meeting of Stockholders Closing Date (the “Standstill Period”)):
(i) in any way acquire, except offer or propose to acquire or agree to acquire legal title to or Beneficial Ownership of any Voting Securities;
(ii) make any public announcement with respect to, or submit to the extent expressly permitted Company or any of its directors, officers, representatives, trustees, employees, attorneys, advisors, agents or Affiliates, any proposal for the acquisition of any Voting Securities or with respect to any merger, consolidation, business combination, restructuring, recapitalization or purchase of any substantial portion of the assets of the Company of any of its Subsidiaries, in which such Principal Purchaser and its Affiliates are involved, and whether or not such proposal might require the making of a public announcement by the terms of this Agreement, none Company unless the Company shall have made a prior written request to such Principal Purchaser to submit such a proposal (provided that the foregoing shall not prohibit such Principal Purchaser from submitting a proposal to the Chief Executive Officer or Chief Financial Officer of the Sellers shall, and Sellers shall cause their respective controlled Affiliates Company on a confidential basis so long as such proposal would not to, directly or indirectly, in require the making of any manner, alone or in concert with others:public announcement by the Company);
(aiii) solicitseek or propose to influence, advise, change or control the management, Board of Directors, governing instruments or policies or affairs of the Company by way of any public communication or communication with any Person other than the Company, or knowingly encourage make, or in any way engage in any solicitation ofparticipate in, any proxies “solicitation” of “proxies” (as such terms are defined or consents used in Regulation 14A under the Exchange Act) to vote any Voting Securities or become a “participant” in a any “solicitation,election contest” directly or indirectly, (as such terms are defined and used in Rule 14a-11 under the Exchange Act) with respect to Voting Securities; provided, however, that nothing in this clause (iii) shall prevent a Principal Purchaser or its Affiliates from (x) other than as set forth in Section 4.09, voting in any manner any Voting Securities over which Principal Purchaser or such Affiliates has Beneficial Ownership or (y) communicating privately with stockholders of the Company to the extent such communication does not constitute a “solicitation” of “proxies,” as such terms are defined or used in Regulation 14A under the Securities Exchange Act and the number of 1934, as amended persons with whom Principal Purchaser communicates is fewer than ten (the “Exchange Act”10); or
(iv) make a request to amend or waive any provision of proxies or consents (including, without limitation, any solicitation of consents that seeks to call a special meeting of stockholders or by encouraging or participating in any “withhold” or similar campaignthis Section 4.03(a), in each case, with respect to securities of the Company or Fifth Street Senior Floating Rate Corp. (“FSFR”) or any securities convertible or exchangeable into or exercisable for any such securities (collectively, “securities of the Companies”);.
(b) make For purposes of this Agreement, a Person shall be deemed to have “Beneficial Ownership” of any proposal for consideration by stockholders at securities in respect of which such Person or any annual or special meeting of the stockholders of the Company or FSFR, whether pursuant such Person’s Affiliates is considered to be a “Beneficial Owner” under Rule 14a-8 13d-3 under the Exchange Act, either such company’s constituent documents or otherwise;Act as in effect on the date hereof.
(c) knowingly advise, encourage, support, instruct or influence any person This Section 4.03 shall not apply with respect to any actions that are not in respect of the matters covered Purchased Securities by (i) any person who holds or acquires Voting Securities (A) on behalf of a Principal Purchaser or an Affiliate of a Principal Purchaser as a third-party investment manager with discretionary authority or (B) as, or by or through, investment funds, managed funds, managed accounts or other pooled investment vehicles in which a Principal Purchaser or an Affiliate of a Principal Purchaser, directly or indirectly, has invested or may invest and that are managed by third parties or (ii) any direct or indirect portfolio company of a Principal Purchaser or an Affiliate of a Principal Purchaser or any trading group of a Principal Purchaser or an Affiliate of a Principal Purchaser so long as, in each of clauses (i) and (ii), such Principal Purchaser has not disclosed to such Affiliate any confidential information regarding the Company obtained in its capacity as a Principal Purchaser, including, through its right to appoint a Board of Directors observer (it being understood and agreed that confidential information regarding the Company will presumptively not be deemed to have been shared if such Person is restricted from accessing such information through compliance with standard practices and procedures restricting the flow of information from such Principal Purchaser to such Affiliate). In addition, the provisions of this Section 3.1 or 4.03 shall not prohibit a Principal Purchaser from engaging in ordinary course index-replicating activities consistent with respect past practice to the voting or disposition of any securities of the Companies at any annual or special meeting of stockholders of extent applicable, provided that such Principal Purchaser traders effecting such trades have not been provided by such Principal Purchaser with confidential information regarding the Company or FSFRobtained in its capacity as a Principal Purchaser, except in accordance with Section 3.4, or seek including through Purchaser A’s right to do so;appoint a Board of Directors observer.
(d) agree, attempt, seek or propose to deposit any securities of the Companies in any voting trust or similar arrangement, or subject any securities of the Companies to any arrangement or agreement with respect to the voting thereof, except in accordance with Section 3.4;
The Standstill Period shall immediately terminate and expire if: (ei) knowingly seek or encourage any person to submit nominations in furtherance of (other than a Principal Purchaser or its Affiliates) or “contested solicitationgroup” or take other action for the election or removal of directors with respect to the Company or FSFR, including any action that as such term is intended to, or is reasonably likely to result in, the replacement of the investment advisor of the Company or FSFR, or a modification to the terms or conditions of either the Company’s or FSFR’s investment advisory agreement;
(f) form, join in or in any way participate in a partnership, limited partnership, syndicate or other group, including, without limitation, a group as defined under Section 13(d) of the Exchange Act (except such participation related to which does not comprise a Principal Purchaser or its Affiliates) shall have acquired or entered into a binding definitive agreement that has been approved by the reasonable unwinding of any such group currently existing as of the date of this Agreement) with any person who is not identified on Schedule I hereto (any such person, a “Third Party”), with respect to any securities of the Companies or take any other action that would interfere with the ability of Sellers to vote in accordance with this Agreement;
(g) make any disclosure, communication, announcement or statement regarding any intent, purpose, plan or proposal with respect to the FSC Board of Directors or any duly constituted committee thereof to acquire more than fifty percent (the “Company Board”), the Company investment advisor or the terms and conditions 50%) of the Company’s investment advisory agreement, the FSFR Board of Directors (the “FSFR Board”), the FSFR investment advisor outstanding Voting Securities or the terms and conditions of FSFR’s investment advisory agreement, the Company, FSFR, all or the management, policies or affairs of either the Company or FSFR, or with respect to this Agreement, that is inconsistent with the provisions of this Agreement;
(h) effect or seek to effect, offer or propose to effect, cause or participate in, or in any way assist or facilitate any other person to effect or seek, offer or propose to effect or participate in, any tender or exchange offer, merger, consolidation, acquisition, scheme, arrangement, business combination, recapitalization, reorganization, sale or acquisition of assets, liquidation, dissolution, extraordinary dividend, significant share repurchase or other extraordinary transaction involving the Company, FSFR or either of their investment advisors, or any of their subsidiaries or joint ventures or any of their respective securities (each, an “Extraordinary Transaction”), or make any statement or disclosure regarding any intent, purpose, plan or proposal with respect to any Extraordinary Transaction or this Agreement that is inconsistent with the provisions of this Agreement, including any intent, purpose, plan or proposal that is conditioned on, or would require waiver, amendment, nullification or invalidation of, any provision of this Agreement or take any action that could require the Company or FSFR to make any public disclosure relating to any such intent, purpose, plan, proposal or condition;
(i) (i) call or seek to call or request the calling of any meeting of stockholders at either the Company or FSFR, including by written consent, (ii) seek, alone or in concert with others, representation on, or nominate any candidate to, the Company Board or the FSFR Board, (iii) seek the removal of any member substantially all of the Company Board or the FSFR Board, (iv) seek, alone or in concert with others, or support any Third Party in seeking, to replace the investment advisor assets of the Company or the investment advisor of FSFR, (v) solicit consents from the Company or FSFR stockholders or otherwise act or seek to act by written consent, (vi) conduct a referendum of the Company or FSFR stockholders or (vii) make a request for any stockholders list or any other books and records in Sellers’ capacity as a Company or FSFR stockholder;
(j) purchase or cause to be purchased or otherwise acquire or agree to acquire beneficial ownership of any securities issued by the Company or FSFR, or any securities convertible into or exchangeable for securities issued by the Company or FSFR;
(k) sell, offer to sell, give, pledge, grant a security interest in, encumber, assign, grant any option for the sale of or otherwise transfer or dispose of (each, a “Transfer”) any securities issued by the Company and/or any securities convertible into or exchangeable for securities issued by the Company, unless any Buyer fails to timely perform each of its obligations under Section 1.2(b), Section 1.3(c) and/or Section 1.3(d)(i) of this Agreement;
(l) institute, solicit or join, as a party, or knowingly assist any other person in instituting, soliciting or joining, any litigation, arbitration or other proceeding against the Company or FSFR or any of their current or former directors or officers (including derivative actions), other than (i) litigation to enforce the provisions of this Agreement and (ii) counterclaims with respect to any proceeding initiated byperson (other than a Principal Purchaser or its Affiliates) commences a tender or exchange offer which, or on behalf ofif consummated, a party to this Agreement or FSFR against Sellers;
would result in such person’s acquisition of Beneficial Ownership of more than fifty percent (m50%) enter into or engage in any short sale or purchase, sale or grant of any option, warrant, derivative, convertible security, stock appreciation right or other similar right (including, without limitation, any put or call option or swap transaction) with respect to or having any measurement relating to any securities of the Companies;
(n) enter into any negotiations, arrangements, understanding or agreements (whether written or oral) with, or advise, finance, assist, seek to knowingly persuade or encourage, any Third Party to take any action or make any statement in connection with any of the foregoing, or make any investment in or enter into any arrangement with any other person that engages, or offers or proposes to engage, in any of the foregoing, or otherwise take or cause any action or make any statement inconsistent with any of the foregoing; or
(o) take any action challenging the validity or enforceability of this Agreement, or make or in any way advance any request or proposal that the Company, FSFR, the Company Board or the FSFR Board amend, modify or waive any provision of this Agreementoutstanding Voting Securities.
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